FORM 10-K
SECURlTlES AND EXCHANGE COMMlSSlON
WASHINGTON, D. C. 20549
[X] Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the fiscal year ended
December 31, 1999 Commission File Number 1-3132-2
INDIANAPOLIS POWER & LIGHT COMPANY
(Exact name of Registrant as specified in its charter)
Indiana 35-0413620
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Monument Circle
Indianapolis, Indiana 46204
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 317-261-8261
Securities Registered Pursuant to Section 12(b) of the Act: None
Securities Registered Pursuant to Section 12(g) of the Act:
591,353 Shares of Cumulative Preferred Stock
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to the
filing requirements for at least the past 90 days. Yes X No
---- ----
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. ( X )
As of January 31, 2000, there were 17,206,630 shares of the registrant's
common stock (without par value) issued and outstanding.
-------------------------------------
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Indianapolis Power & Light Company definitive Information
Statement for the Annual Meeting of Shareholders to be held on April 19, 2000
are incorporated by reference into Part III of this Report.
<PAGE>
PART I
------
Item 1. BUSINESS
--------
ORGANIZATION
Indianapolis Power & Light Company (IPL) is an operating public utility
incorporated under the laws of the state of Indiana on October 27, 1926. IPL is
a wholly-owned subsidiary of IPALCO Enterprises, Inc. (IPALCO). IPALCO is a
holding company incorporated under the laws of the state of Indiana on September
14, 1983. All common stock of IPL is owned by IPALCO.
IPL has two business segments, electric and "all other." Steam operations
of IPL are in the "all other" segment (see Note 14 in the Notes to Financial
Statements for additional information about segments).
GENERAL
IPL is engaged primarily in generating, transmitting, distributing and
selling electric energy in the city of Indianapolis and neighboring cities,
towns, communities, and adjacent rural areas, all within the state of Indiana,
the most distant point being about 40 miles from Indianapolis. It also produces,
distributes and sells steam within a limited area in such city. There have been
no significant changes in the services rendered, or in the markets or methods of
distribution, since the beginning of the fiscal year. IPL intends to do business
of the same general character as that in which it is now engaged. Indiana law
authorizes electricity suppliers to have exclusive retail service areas.
IPL's business is not dependent on any single customer or group of a few
customers. IPL's electricity sales for 1995-1999 are depicted on page I-4.
The electric utility business is affected by seasonal weather patterns
throughout the year and, therefore, the operating revenues and associated
operating expenses are not generated evenly by month during the year.
IPL's generation, transmission and distribution facilities (electric
system) are described in Item 2, "PROPERTIES." IPL's electric system is directly
interconnected with the electric systems of Indiana Michigan Power Company, PSI
Energy, Inc., Southern Indiana Gas and Electric Company, Wabash Valley Power
Association, Hoosier Energy Rural Electric Cooperative, Inc. and the Indiana
Municipal Power Agency.
Also, IPL is a member of the East Central Area Reliability Group (ECAR),
and is cooperating under an agreement that provides for coordinated planning of
generation and transmission facilities and the operation of such facilities to
promote reliability of bulk power supply in the nine-state region served by
ECAR. Smaller electric utility systems, independent power producers and power
marketers participate as associate members.
REGULATION
IPL is subject to regulation by the Indiana Utility Regulatory Commission
(IURC) as to its services and facilities, valuation of property, the
construction, purchase or lease of electric generating facilities,
classification of accounts, rates of depreciation, rates and charges, issuance
of securities (other than evidences of indebtedness payable less than twelve
months after the date of issue), the acquisition and sale of public utility
properties or securities and certain other matters (see Note 10 in the Notes to
Financial Statements).
In addition, IPL is subject to the jurisdiction of the Federal Energy
Regulatory Commission (FERC), with respect to short-term borrowings not
regulated by the IURC, the sale and transmission of electric energy in
interstate commerce, the classification of its accounts and the acquisition and
sale of utility property in certain circumstances as provided by the Federal
Power Act.
IPL is also subject to federal, state and local environmental laws and
regulations, particularly as to generating station discharges affecting air and
water quality. The impact of compliance with such regulations on the capital and
operating costs of IPL has been and will continue to be substantial (see Item 7,
"MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS" under "Competition and Industry Changes").
.
RETAIL RATEMAKING
IPL's tariffs for electric and steam service to retail customers (basic
rates and charges) are set and approved by the IURC after public hearings. Such
proceedings, which have occurred at irregular intervals, involve IPL, the staff
of the IURC, the Office of the Indiana Utility Consumer Counselor, as well as
other interested consumer groups and customers. In Indiana, basic rates and
charges are determined after giving consideration, on a pro-forma basis, to all
allowable costs for ratemaking purposes including a fair return on the fair
value of the utility property used and useful in providing service to customers.
Once set, the basic rates and charges authorized do not assure the realization
of a fair return on the fair value of property. Pursuant to statute, the IURC
conducts a periodic review of the basic rates and charges of all utilities at
least once every four years. Other numerous factors including, but not limited
to, weather, inflation, customer growth and usage, the level of actual
maintenance and capital expenditures, fuel costs, generating unit availability
and purchased power costs and availability can affect the return realized.
During 1998, in an order resulting from an IPL initiated proceeding, the IURC
declined to exercise its jurisdiction in part over IPL customers who voluntarily
select service under IPL's Elect Plan option. Under two of these options, the
customer's prices are not adjusted for changes in fuel costs or other factors.
During 1999, the total revenue from customers choosing the Elect Plan options
was $68 million. The Elect Plan will expire in September 2001 unless a
subsequent plan is approved by the IURC. Substantially all other IPL customers
are served pursuant to retail tariffs that provide for the monthly billing or
crediting to customers of increases or decreases, respectively, in the actual
costs of fuel consumed from estimated fuel costs embedded in base tariffs,
subject to certain restrictions on the level of operating income. Additionally,
most such retail tariffs provide for billing of "lost revenue margins" on
estimated kilowatt-hour (kWh) sales reductions along with current and deferred
costs resulting from IPL's IURC-approved demand side management programs (DSM).
IPL maintains its books and records consistent with generally accepted
accounting principles reflecting the impact of regulation (see Note 1 in the
Notes to Consolidated Financial Statements and Item 7, "MANAGEMENT'S DISCUSSION
AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" under "Nature of
Operations and Regulatory Matters").
Future events, including the advent of retail competition within IPL's
service territory, could result in the deregulation of part of IPL's existing
regulated businesses (see "Competition and Industry Changes" in Item 7,
"MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS"). Upon deregulation, adjustments to IPL's accounting records may be
required to eliminate the historical impact of regulatory accounting. Such
adjustments, as required by Statement of Financial Accounting Standards No. 101
(SFAS 101), "Regulated Enterprises - Accounting for the Discontinuation of
Application of FASB Statement No. 71," would eliminate the "effects of any
actions of regulators that have been recognized as assets and liabilities...."
Required adjustments could include expensing of any unamortized net regulatory
assets, elimination of certain tax liabilities and a write down of any impaired
utility plant balances. IPL does not expect to be required to adopt SFAS 101 in
the near term.
FUEL
In 1999, approximately 99% of the total kWh produced by IPL were
generated from coal. Natural gas, No. 2 fuel oil and purchased steam combined to
provide the remaining kWh generation. Natural gas is used in IPL's newer
combustion turbines. In addition to use in oil-fired generating units, fuel oil
is used for start up and flame stabilization in coal-fired generating units.
IPL's long-term coal contracts provide for the major portion of its burn
requirements through the year 2005. The long-term coal agreements are with four
suppliers and the coal is mined entirely in the state of Indiana. It is
presently believed that all coal used by IPL will be mined by others. IPL
normally carries fuel oil and a 60-day supply of coal to offset unforeseen
occurrences such as labor disputes, equipment breakdowns and power sales to
other utilities. IPL increases its stockpile to an approximate 80-day supply
when strikes are anticipated in the coal industry. In preparation for possible
supply problems with Year 2000 issues, IPL temporarily increased its stockpile
to an approximate 100-day supply at the end of 1999.
EMPLOYEE RELATIONS
As of December 31, 1999, IPL had 1,936 employees of whom 971 were
represented by the International Brotherhood of Electrical Workers, AFL-CIO
(IBEW) and 307 were represented by the Electric Utility Workers Union (EUWU), an
independent labor organization. In September 1999, the membership of the IBEW
ratified a new labor agreement that remains in effect until December 16, 2002.
The agreement provided for general pay adjustments of 4% in December 1999 and 2%
in both 2000 and 2001, and changes in pension and health care coverage. In
February of 1998, the membership of the EUWU ratified a new labor agreement that
remains in effect until February of 2001. The agreement provided for general pay
adjustments of 3% in both 1998 and 1999, as well as an adjustment of 2% in 2000.
The agreement also provides for increases in pension amounts.
<PAGE>
<TABLE>
<CAPTION>
INDIANAPOLIS POWER & LIGHT COMPANY
STATISTICAL INFORMATION - ELECTRIC
The following table of statistical information presents additional data on IPL's
operation.
Year Ended December 31,
------------------------------------------------------------------------------------
Operating Revenues (In 1999 (1) 1998 (1) 1997 (1) 1996 1995
Thousands):
------------ ------------ -------------- ------------- --------------
<S> <C> <C> <C> <C> <C>
Residential $ 282,254 $ 269,351 $ 261,832 $ 261,819 $ 243,055
Small industrial and commercial 127,027 122,082 125,131 131,465 130,009
Large industrial and commercial 328,903 321,103 306,761 298,720 275,803
Public lighting 10,386 9,754 9,324 9,043 8,369
Miscellaneous 10,600 12,469 12,050 9,264 8,289
------------ ------------ -------------- ------------- --------------
Revenues - ultimate 759,170 734,759 715,098 710,311 665,525
consumers
Sales for resale - REMC 1,035 936 1,082 1,141 1,105
Sales for resale - other 40,132 50,140 21,954 13,312 6,758
------------ ------------ -------------- ------------- --------------
Total electric revenues $ 800,337 $ 785,835 $ 738,134 $ 724,764 $ 673,388
============ ============ ============== ============= ==============
Kilowatt-hour Sales (In
Millions):
Residential 4,510 4,359 4,276 4,367 4,277
Small industrial and commercial 1,928 1,888 1,969 2,117 2,197
Large industrial and commercial 7,187 7,138 6,857 6,772 6,509
Public lighting 73 71 69 71 73
------------ ------------ -------------- ------------- --------------
Sales - ultimate consumers 13,698 13,456 13,171 13,327 13,056
Sales for resale - REMC 33 31 29 29 28
Sales for resale - other 1,968 2,252 1,111 725 394
------------ ------------ -------------- ------------- --------------
Total kilowatt-hours sold 15,699 15,739 14,311 14,081 13,478
============ ============ ============== ============= ==============
Customers at End of Year:
Residential 385,799 379,943 374,686 370,029 365,163
Small industrial and commercial 42,610 42,230 41,137 40,393 39,772
Large industrial and commercial 4,107 4,036 3,960 3,657 3,557
Public lighting 509 445 357 313 290
------------ ------------ -------------- ------------- --------------
Total ultimate consumers 433,025 426,654 420,140 414,392 408,782
Sales for resale - REMC 1 1 1 1 1
------------ ------------ -------------- ------------- --------------
Total electric customers 433,026 426,655 420,141 414,393 408,783
============ ============ ============== ============= ==============
(1) Includes estimated electric operating revenue and kilowatt-hour sales for
services delivered but not billed during the period (see Notes 1 and 3 in the
Notes to Financial Statements).
</TABLE>
Item 2. PROPERTIES
----------
IPL's executive offices are in the IPALCO Corporate Center located at One
Monument Circle, Indianapolis, Indiana. This facility also houses certain
administrative operations of certain other IPALCO subsidiaries.
IPL also owns two distribution service centers in Indianapolis at 1230
West Morris Street and 3600 North Arlington Avenue. IPL's customer service
center is located at 2102 North Illinois Street in Indianapolis.
IPL owns and operates three primarily coal-fired generating plants that
are used for electric generation. IPL also operates one coal and gas-fired
plant. For electric generation, the total gross nameplate rating is 3,024 MW,
winter capability is 3,036 MW and summer capability is 2,956 MW. For steam
generation, gross capacity is 1,990 Mlbs. (thousands of pounds) per hour.
Total Electric Stations:
H. T. Pritchard plant (Pritchard), located 25 miles southwest of
Indianapolis (seven units in service - one each in 1949, 1950, 1951, 1956 and
1967 and two in 1953) with 367 MW nameplate rating and net winter and summer
capabilities of 344 MW and 341 MW, respectively.
E. W. Stout plant (Stout) located in the southwest part of Marion County
(eleven units in service - one each in 1941, 1947, 1958, 1961, 1967, 1994 and
1995 and four in 1973) with 921 MW nameplate rating and net winter and summer
capabilities of 1,000 MW and 924 MW, respectively.
Petersburg plant (Petersburg), located in Pike County, Indiana (seven units
in service - four in 1967 and one each in 1969, 1977 and 1986) with 1,716 MW
nameplate rating and net winter and summer capabilities of 1,672 MW.
Combination Electric and Steam Station:
C.C.Perry Section K plant (Perry K), located in Indianapolis with 20 MW
nameplate rating (net winter capability 20 MW, summer 19 MW) for electric and a
gross winter and summer capacity of 1,990 Mlbs. per hour for steam.
Net electrical generation during 1999, at the Petersburg, Stout and
Pritchard stations accounted for about 69.0%, 23.3% and 7.7%, respectively, of
IPL's total net generation. Perry K produced all of the steam generated by IPL
for the steam system. In addition, IPL purchases steam from an independent
resource recovery system in Indianapolis.
Included in the above totals are three gas turbine units at the Stout
station added in 1973, one gas turbine added in 1994 and one gas turbine added
in 1995 with a combined nameplate rating of 214 MW. Also included is one diesel
unit each at Pritchard and Stout stations and three diesel units at Petersburg
station, all added in 1967. Each diesel unit has a nameplate rating of 3 MW.
During 1998, IPL announced plans to construct up to 200 megawatts of new
combustion turbines (CTs). The new turbines would be used during times of
highest or "peak" electric demand. One turbine is expected to be placed in
service by June 2000, and is included in the construction forecast. IPL filed a
petition with the IURC recommending that the IURC decline its jurisdiction over
IPL's planned construction and operation of the new CTs and adopt an alternative
procedure for dealing with the sale of power produced by the CTs to IPL's retail
customers. During 1999, the IURC agreed to decline to exercise its jurisdiction
over the construction of the CTs. The Commission also agreed to defer any
determinations regarding all ratemaking issues until a later proceeding.
IPL's transmission system includes 457 circuit miles of 345,000 volt
lines, 359 circuit miles of 138,000 volt lines and 269 miles of 34,500 volt
lines. Underground distribution and service facilities include 686 miles of
conduit and 6,487 wire miles of conductor. Underground street lighting
facilities include 108 miles of conduit and 760 wire miles of conductor. Also
included in the system are 73 bulk power substations and 69 distribution
substations.
Steam distribution properties include 22 miles of mains with 238 customer
connections. Other properties include coal and other minerals, underlying 798
acres in Sullivan County, Indiana, and coal underlying about 6,215 acres in Pike
and Gibson Counties, Indiana. IPL owns approximately 4,067 acres in Morgan
County, Indiana and approximately 884 acres in Switzerland County, Indiana, for
future plant sites.
All critical facilities owned by IPL are well maintained, in good
condition and meet the present needs of IPL.
The Mortgage and Deed of Trust of IPL, together with the Supplemental
Indentures thereto (the "Mortgage"), secure first mortgage bonds issued by IPL.
Pursuant to the terms of the Mortgage, substantially all property owned by IPL
is subject to a direct first mortgage lien.
Item 3. LEGAL PROCEEDINGS
-----------------
IPL is a party to State of Michigan et al v. U.S. EPA a proceeding
----------------------------------------
instituted in November, 1998, now pending in the U.S. Court of Appeals for
the District of Columbia Circuit. This is a petition for review of EPA's rule
promulgated October 27, 1998, requiring Indiana and 22 other jurisdictions to
impose more stringent limitations on emissions of nitrogen oxides (the "NOx SIP
Call"). Petitioners challenging the NOx SIP Call include seven states, about 60
investor-owned electric utility companies, numerous trade associations, serveral
municipal utilities, co-ops, and labor unions. Intervenor-respondents include
several environmental interest groups, Canada, eight states in the Northeast,
and several eastern electric utility companies.
EPA's NOx SIP Call would require operators of coal-fired electric utility
boilers in the affected states to limit NOx emissions to 0.15 pounds per million
BTUs of heat input as a system-wide average. That limit calls for a reduction of
about 85% from 1990 average emissions from coal-fired electric utility boilers,
and a reduction of about 57% from IPL's current emissions.
It is not possible to predict whether EPA's NOx SIP Call will ultimately
survive judicial review. Nor is it possible to predict accurately the costs of
compliance. IPL's preliminary estimates are that the NOx SIP Call would
necessitate capital expenditures of about $180 million.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
---------------------------------------------------
None
EXECUTIVE OFFICERS OF THE REGISTRANT AT FEBRUARY 29, 2000
Name, age (at December 31, 1999), and positions and offices held for the
past five years:
From To
---- --
John R. Hodowal (54)
Chairman of the Board February, 1990
Chief Executive Officer May, 1989
Ramon L. Humke (67)
President and Chief Operating
Officer February, 1990
John R. Brehm (46)
Senior Vice President - Finance May, 1998
Senior Vice President - Finance
and Information Services May, 1991 May, 1998
Ralph E. Canter (43)
Senior Vice President -
Customer Services May, 1998
Vice President-
Steam Operations May, 1995 May, 1998
Manager of Steam Operations October, 1990 May, 1995
Bryan G. Tabler (56)
Senior Vice President -
Secretary and General Counsel January, 1995
Stephen M. Powell (49)
Senior Vice President -
Energy Supply May, 1998
Manager of Engineering and
Production Services June, 1994 May, 1998
Paul S. Mannweiler (50)
Senior Vice President -
External Affairs January, 1997
Partner, Locke Reynolds Boyd and Weisell July, 1980 December, 1996
Max Califar (46)
Vice President - Human
Resources December, 1992
Michael G. Banta (49)
Vice President - Financial Strategy May, 1998
Vice President and Assistant General
Counsel of IPL July, 1995 May, 1998
Daniel L. Short (42)
Treasurer January, 2000
Treasurer - Mid-America
Capital Resources January, 1995
Stephen J. Plunkett (51)
Controller May, 1991
PART II
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Item 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED SECURITY HOLDER MATTERS
- --------------------------------------------------------------------------------
All common stock of IPL is owned by IPALCO and is not publicly traded on
any stock exchange.
Aggregate dividends paid on the common stock were $129.9 million and
$214.2 million during 1999 and 1998, respectively. Dividends were paid at
varying intervals as determined by the Board of Directors.
IPL's Board of Directors declared a dividend on common stock of $12.9
million on November 30, 1999, payable January 15, 2000.
Dividend Restrictions
- ---------------------
So long as any of the several series of bonds of IPL issued under the
Mortgage and Deed of Trust, dated as of May 1, 1940, as supplemented and
modified, executed by IPL to American National Bank and Trust Company of
Chicago, as Trustee, remain outstanding, IPL is restricted in the declaration
and payment of dividends, or other distribution on shares of its capital stock
of any class, or in the purchase or redemption of such shares, to the aggregate
of its net income, as defined in Section 47 of such Mortgage, after December 31,
1939. The amount which these Mortgage provisions would have permitted IPL to
declare and pay as dividends at December 31, 1999, exceeded retained earnings at
that date. Such restrictions do not apply to the declaration or payment of
dividends upon any shares of capital stock of any class to an amount in the
aggregate not in excess of $1,107,155, or to the application to the purchase or
redemption of any shares of capital stock of any class of amounts not to exceed
in the aggregate the net proceeds received by IPL from the sale of any shares of
its capital stock of any class subsequent to December 31, 1939. In addition,
pursuant to IPL's Articles of Incorporation, no dividends may be paid or accrued
and no other distribution may be made on IPL's common stock unless dividends on
all outstanding shares of IPL preferred stock have been paid or declared and set
apart for payment. The management of IPL believes these restrictions will not
materially restrict anticipated dividends.
<PAGE>
<TABLE>
<CAPTION>
Item 6. SELECTED FINANCIAL DATA
-----------------------
(In Thousands) 1999 1998 1997 1996 1995
- ---------------------------------------- --------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Total operating revenues (1) $ 834,652 $ 821,256 $ 776,427 $ 762,503 $ 709,206
Operating income 183,501 179,511 167,315 163,219 147,588
Allowance for funds used
during construction 2,201 2,300 4,407 9,321 11,370
Income before cumulative effect
of accounting change (1) 146,231 149,147 133,402 122,588 106,273
Cumulative effect of accounting change (1) - - 18,347 - -
Net income 146,231 149,147 151,749 122,588 106,273
Preferred dividend requirements 3,213 3,119 2,760 3,182 3,182
Income applicable to
common stock 143,018 146,028 148,989 119,406 103,091
Utility plant - net 1,750,412 1,748,460 1,766,383 1,787,969 1,792,007
Total assets 2,048,750 2,023,066 2,049,772 2,052,400 2,108,816
Construction expenditures 103,452 79,458 73,130 78,543 166,874
Common shareholder's equity 780,510 767,926 835,492 782,249 747,129
Nonredeemable cumulative
preferred stock 59,135 59,135 9,135 51,898 51,898
Long-term debt (less current
maturities and sinking
fund requirements) 627,951 627,893 627,840 627,791 669,000
See financial statements.
(1) In 1997, IPL adopted the unbilled revenue method of accounting for
electricity and steam delivered during the period. Revenues are accrued for
services provided but unbilled at the end of each month (see Notes 1 and 3
in the Notes to Financial Statements).
</TABLE>
<PAGE>
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
---------------------------------------------------------------
RESULTS OF OPERATIONS (INCLUDING ITEM 7A)
-----------------------------------------
IPL has two business segments (electric and "all other"). Steam
operations are in the "all other" category (see Note 14 in the Notes to
Financial Statements).
FORWARD-LOOKING STATEMENTS
IPL hereby files cautionary statements identifying important factors that
could cause IPL's actual results to differ materially from those projected in
forward-looking statements of IPL. This Form 10-K, and particularly Management's
Discussion and Analysis, contains forward-looking statements. Forward-looking
statements express an expectation or belief and contain a projection, plan or
assumption with regard to, among other things, future revenues, income, earnings
per share or capital structure. Such statements of future events or performance
are not guarantees of future performance and involve estimates, assumptions and
uncertainties. The words "anticipate," "believe," "estimate," "expect,"
"forecast," "project," "objective," and similar expressions are intended to
identify forward-looking statements.
Some important factors that could cause IPL's actual results or outcomes
to differ materially from those discussed in the forward-looking statements
include, but are not limited to, fluctuations in customer growth and demand,
weather, fuel costs, generating unit availability, purchased power costs and
availability, regulatory action, environmental matters, federal and state
legislation, interest rates, labor strikes, maintenance and capital expenditures
and local economic conditions. In addition, IPL's ability to have available an
appropriate amount of production capacity in a timely manner can significantly
affect IPL's financial performance. The timing of deregulation and competition,
product development and technology changes are also important potential factors
All such factors are difficult to predict, contain uncertainties that may
materially affect actual results and are beyond the control of IPL.
LIQUIDITY AND CAPITAL RESOURCES
Nature of Operations and Regulatory Matters
-------------------------------------------
Regulation
- ----------
IPL is a regulated public utility and is principally engaged in providing
electric and steam service to the Indianapolis metropolitan area. As a regulated
entity, IPL is required to use certain accounting methods prescribed by
regulatory bodies which may differ from those accounting methods required to be
used by nonregulated entities (see Note 1 in the Notes to Financial Statements).
IPL is subject to extensive regulation at both the federal and state
level. IPL is substantially affected by the regulatory jurisdiction of the
Environmental Protection Agency and the Federal Energy Regulatory Commission at
the federal level and the Indiana Department of Environmental Management and the
Indiana Utility Regulatory Commission (IURC) at the state level. Other
significant regulatory agencies affecting IPL include but are not limited to the
U.S. Department of Labor and the Indiana Occupational Safety and Health
Administration. The regulatory power of the IURC over IPL is both comprehensive
and typical of the economic regulation generally imposed by state public utility
commissions over investor-owned utilities.
An inherent business risk facing any regulated public utility is that of
unexpected or adverse regulatory action. Regulatory discretion is reasonably
broad in Indiana, as elsewhere. Therefore, IPL attempts to work cooperatively
with regulators and those who participate in the regulatory process, while
remaining vigilant and steadfast in protecting IPL's legal rights in the
regulatory process. IPL takes an active role in addressing regulatory policy
issues in the current regulatory environment which is subject to rapid change in
large part because of the trend toward restructuring of the United States
electric utility industry and increased activity by environmental regulators.
Elect Plan
- ----------
In 1998, the IURC approved a plan that allows IPL to offer customers with
less than 2,000 kilowatts of demand an opportunity to choose from optional
payment or service plans. IPL's authority to offer these options will expire on
September 18, 2001, and any contracts entered into thereunder must terminate on
or before that date unless a subsequent plan is approved by the IURC.
Under the plan, eligible IPL customers may enter into written contracts
for:
Fixed Rate - Pay a guaranteed fixed rate per unit of consumption for one
or more years.
Green Power - Purchase environmentally friendly or "green"
power.
Additionally, residential customers may choose a "Sure Bill" option,
paying the same bill each month for 12 months, regardless of how much
electricity is used. Customers not choosing one of these options continue to
receive electric service under existing tariffs. (See Item 1, BUSINESS, under
the subheading "Retail Ratemaking.")
Authorized Annual Operating Income
- ----------------------------------
During quarterly fuel adjustment clause proceedings, the annual
jurisdictional operating income of IPL's electric business is subject to review.
IPL's steam business is subject to annual fuel adjustment clause proceedings.
Customer refunds could result if actual annual jurisdictional operating income
exceeds levels authorized by the IURC (see Note 1 in the Notes to Financial
Statements). IPL does not anticipate any customer refunds to result from such
reviews during 2000.
Competition and Industry Changes
--------------------------------
In recent years, various forms of proposed industry-restructuring
legislation and/or rulemakings have been introduced at the federal level and in
several states. Generally, the intent of these initiatives is to encourage an
increase in competition within the regulated electric utility industry. While
federal rulemaking to date has addressed only the electric wholesale market,
various state legislatures are considering or have enacted new laws impacting
the retail energy markets within their respective states. A discussion of the
legislative and regulatory initiatives most likely to affect IPL follows:
Wholesale Energy Market
- -----------------------
In April 1996, the Federal Energy Regulatory Commission (FERC) issued
Orders 888 and 889 concerning open access transmission service for wholesale
sales. These Orders require all utilities under FERC jurisdiction to: 1. file
open, nondiscriminatory transmission access tariffs with FERC; 2. offer
transmission to eligible customers comparable to service they provide
themselves; and 3. take service under the tariffs for their own wholesale sales
and purchases of electricity. IPL filed its open access transmission tariff on
January 6, 2000. Historically, FERC has issued an order making such tariffs
effective as of their date of filing. FERC Order 888 also provides for the
recovery of utility stranded costs which are defined as the difference between
revenues received by utilities under traditional ratemaking and market-based
prices.
In December 1999, FERC issued Order 2000, which provides for the
voluntary formation of regional transmission organizations (RTOs), entities
created to operate, plan and control utility transmission assets. Order 2000
also prescribes certain characteristics and functions of acceptable RTO
proposals. The rule requires all public utilities that own, operate or control
interstate transmission to individually file in October 2000, either a proposal
to join an RTO or the reasons for not participating in an RTO.
Retail Energy Market
- --------------------
The legislatures of several states have enacted, and many other states
are considering, new laws that would allow various forms of competition for
retail sales of electric energy. While each state proposal is different, most
provide for some recovery of a utility's stranded costs and require an extended
transition period before competition is fully effective. Additionally, a few
states have implemented pilot programs that experiment with allowing some form
of customer choice of electricity suppliers.
In Indiana, competition among electric energy providers for sales has
focused primarily on the sale of bulk power to other public and municipal
utilities. Indiana law provides for electricity suppliers to have exclusive
retail service areas.
In 1995, the Indiana General Assembly, anticipating increasing
competitive forces in the regulated public utility industry, enacted I.C.
8-1-2.5. This law enables the IURC to consider and approve, on an individual
utility basis, utility-initiated proposals wherein the IURC declines to exercise
jurisdiction over the whole or any part of the utility, or its retail energy
service or both. The IPL Elect Plan was approved by the IURC under this law.
During 1997, the Indiana General Assembly authorized a legislative study
committee to assess the issue of electric utility competition and restructuring.
A comprehensive restructuring bill was introduced in the Indiana Senate in 1998,
but failed to pass. Subsequently, comprehensive restructuring bills were
submitted in both 1999 and 2000 and also failed to pass. IPL continues to work
cooperatively with other electric utilities in Indiana regarding future
legislation. However, the outcome of such efforts is uncertain.
National Ambient Air Quality Standards
- --------------------------------------
On July 16, 1997, the United States Environmental Protection Agency (EPA)
promulgated final rules tightening the National Ambient Air Quality Standards
for ozone and creating new fine particulate matter standards. On October 29,
1999, after conducting a rehearing of its initial decision of May 14, 1999, the
United States Court of Appeals for the District of Columbia Circuit determined
that the new ozone standards were not issued lawfully, but left open the
question of future remedy. The Court also determined that the standards for fine
particulate matter were legally deficient in certain respects. EPA has
petitioned the Supreme Court to review the Court of Appeals' decision.
NOx SIP Call
- ------------
On October 27, 1998, EPA issued a final rule calling for Indiana, along
with 22 other jurisdictions in the eastern third of the United States, to impose
more stringent limits on nitrogen oxides (NOx) from fossil-fuel fired steam
electric generators, such as those operated by IPL. This rule (the NOx SIP Call)
was based in part on the new ozone standards that were later held unlawful in
the Court of Appeals' decision discussed above. In a separate decision on May
25, 1999, the Court of Appeals stayed the compliance deadlines in the NOx SIP
Call.
Because power plants emit nitrogen oxides, as well as certain air
pollutants that may contribute to formation of fine particulate matter, existing
IPL sources may be required to be retrofitted with additional air pollution
controls in the future, either as a result of EPA's 1997 and 1998 regulations or
due to future regulatory actions. IPL is a party to litigation concerning EPA's
1997 and 1998 final regulations, and that litigation is still in progress.
EPA's NOx SIP Call would require operators of coal-fired electric utility
boilers in the affected states to limit NOx emissions to 0.15 pounds per million
BTUs of heat input as a system-wide average. That limit calls for a reduction of
about 85% from 1990 average emissions from coal-fired electric utility boilers,
and a reduction of about 57% from IPL's current emissions.
It is not possible to predict whether EPA's NOx SIP Call will ultimately
survive judicial review. Nor is it possible at this time to predict accurately
the costs of compliance. IPL's preliminary estimates are that the NOx SIP Call
would necessitate capital expenditures of about $180 million.
The Indiana Department of Environmental Management has recently
circulated a draft rule calling for coal-fired electric utilities to meet an
emission limit of 0.25 pounds of NOx per million BTUs of heat input on a
company-wide basis. Preliminary estimates are that compliance with such a limit
would call for IPL to expend capital of approximately $81 million. It is not
possible to predict whether the draft rule will ever become effective.
As to timing, if either of the requirements discussed in the two
preceding paragraphs became effective, they would likely do so during the
2000-2001 period and would probably necessitate deployment of capital during the
period between 2002 and 2005. There can be no certainty about these estimates.
IPL expects to refine the above estimates as engineering studies progress
and when, as, and if such rules become effective.
Liquidity, Financing Requirements and Capital Market Access
-----------------------------------------------------------
Liquidity is the ability of an entity to meet its short-term and
long-term cash needs. IPL's liquidity is a function of its ability to generate
internal funds, its construction program, its mortgage covenants and loan
agreements and its access to external capital markets.
Sustaining investment grade debt ratings is also a key element for having
adequate liquidity and financial flexibility. As of December 31, 1999, IPL's
senior secured debt was rated AA- by Standard & Poor's, Aa2 by Moody's Investor
Services and AA by Duff & Phelps, and IPL's commercial paper was rated A-1+ by
Standard & Poor's, P-1 by Moody's Investor Services and D-1 by Duff & Phelps.
IPL expects to be able to maintain investment grade debt ratings into the
foreseeable future.
During 1999, IPL refinanced its $23.5 million 7.45% Series first mortgage
bonds with the use of proceeds from a $23.5 million unsecured note. The 1999
Series note has an interest rate based on tax-exempt auction rates and has a
maturity date of August 1, 2030 (see Note 7 in the Notes to Financial
Statements).
IPL has no long-term debt that matures during 2000. However, other
existing higher-rate debt may be refinanced depending upon market conditions.
During the next five years, IPL expects to meet its cash requirements
without any additional permanent financing. Cash flows from operations and
temporary short-term borrowings are projected to provide the funds required for
IPL's construction program. See the following section for discussion of the
construction program.
Future Performance
------------------
Traditionally, retail KWH sales, after adjustments for weather
variations, have grown in reasonable correlation with growth in service
territory economic activity. During the past 10 years, IPL's retail KWH sales
have grown at a compound annual rate of 2.0%, while the Indianapolis economy
grew at an annual rate of 2.5%. The Indianapolis economy is expected to grow at
an annual rate of 2.7% for 2000 through 2004, according to the Kelley School of
Business at Indiana University.
IPL's wholesale KWH sales decreased 12% in 1999 over the level achieved
in 1998 largely as a result of planned and unplanned generating unit outages. As
IPL's retail sales grow the amount of generating capacity available for
wholesale sales is more limited. The ability to sell power in the highly
competitive wholesale market is also highly dependent on market conditions and
the level and frequency of unplanned outages. IPL is unable to predict with any
degree of certainty the level of wholesale sales that may be achieved in 2000.
Operating and maintenance expenses were $425.0 million in 1999. These
expenses in 2000 will be influenced by the level of KWH generation, generating
unit availability and overhaul costs, cost control programs and inflation. IPL
depends on purchased power, in part, to meet its retail obligations. Purchased
power costs are highly volatile and, therefore, IPL is unable to predict with
any degree of certainty the level of those costs for 2000.
IPL's construction program for the three-year period 2000-2002 is
estimated to cost $294.0 million including AFUDC. The estimated cost of the
program by year (in millions) is $106.5 in 2000, $103.9 in 2001 and $83.6 in
2002. It includes $152.2 million for additions, improvements and extensions to
transmission and distribution lines, substations, power factor and voltage
regulating equipment, distribution transformers and street lighting facilities.
The construction program also includes $6.6 million for construction of a
100-megawatt combustion turbine expected to be in service by June 2000. These
projected amounts also include $20.7 million of costs associated with new
environmental standards proposed by the EPA which are currently under appeal in
the United States Court of Appeals (see "Competition and Industry Changes").
Other
-----
Cumulative Effect of Accounting Change
- --------------------------------------
On December 31, 1997, effective January 1, 1997, IPL adopted the unbilled
revenue method of accounting for all electric and steam sales to more closely
match revenues with expenses. Under this method, IPL accrues revenues for all
electric and steam energy delivered to customers during the period whether
billed or not. Previously, IPL recognized these revenues only as customers were
billed, with the service rendered after monthly meter reading dates through the
end of a calendar month recognized as operating revenues in the following month.
The cumulative effect of this change in accounting method as of January 1, 1997,
net of income taxes, was a one-time income increase of $18.3 million and was
reported as a separate component of net income for 1997. This accounting change
does not affect IPL's cash flow or liquidity (see Note 3 in the Notes to
Financial Statements).
Preferred Stock, Debt Issuance and Dividend Restrictions
- ------------------------------ -------------------------
Restrictions on IPL's ability to issue certain securities or pay cash
dividends are contained in its Mortgage and Deed of Trust (Mortgage) and its
Amended Articles of Incorporation (Articles). The Articles require that, so long
as any shares of preferred stock are outstanding, the net income of IPL, as
specified therein, be at least one and one-half times the total interest on the
funded debt and the pro forma dividend requirements on the outstanding, and any
proposed, preferred stock before any additional preferred stock is issued. The
Mortgage requires that net earnings as calculated thereunder be two and one-half
times the annual interest requirements before additional bonds can be
authenticated on the basis of property additions. Based on IPL's net earnings
for the 12 months ended December 31, 1999, the ratios under the Articles and the
Mortgage are 5.05 and 12.35, respectively.
So long as any of the several series of bonds of IPL issued under its
Mortgage remain outstanding, and subject to certain exceptions, IPL is
restricted in the declaration and payment of dividends, or other distribution on
shares of its capital stock of any class, or in the purchase or redemption of
such shares, to the aggregate of its net income, as defined in Section 47 of
such Mortgage, after December 31, 1939. The amount which these Mortgage
provisions would have permitted IPL to declare and pay as dividends at December
31, 1999, exceeded retained earnings at that date. In addition, pursuant to
IPL's Articles, no dividends may be paid or accrued and no other distribution
may be made on IPL's common stock unless dividends on all outstanding shares of
IPL preferred stock have been paid or declared and set apart for payment
IPL believes these requirements will not restrict any anticipated future
financings or cash dividend payments. At December 31, 1999, and considering all
existing restrictions, IPL had the capacity to issue approximately $1.2 billion
of additional long-term debt.
Market Risk Sensitive Instruments and Positions
- -----------------------------------------------
The primary market risk to which IPL is exposed is related to interest
rate risk. IPL uses long-term debt as a primary source of capital in its
business. A portion of this debt has an interest component that resets on a
periodic basis to reflect current market conditions. IPL had $455.3 million of
fixed rate and $173.5 million of variable rate long-term debt outstanding at
December 31, 1999. The weighted average interest rates of IPL's fixed rate and
variable rate long-term debt were 6.7% and 3.8%, respectively, at December 31,
1999. The fair values of the fixed rate and variable rate long-term debt were
$441.6 million and $173.5 million at December 31, 1999. IPL's $80 million 6.05%
Series first mortgage bond matures in February 2004.
To manage IPL's exposure to fluctuations in interest rates and to lower
funding costs, IPL has entered into an interest rate swap. Under this swap, IPL
agrees with counterparties to exchange, at specified intervals, the difference
between fixed-rate and floating-rate interest amounts calculated on an agreed
notional amount. This interest differential paid or received is recognized in
the statements of income as a component of interest expense. At December 31,
1999, IPL's interest rate swap agreement had a notional amount of $40 million,
and it expires in January 2023. IPL agrees to pay interest at a fixed rate of
5.21% to a swap counter party and receive a variable rate based on the
tax-exempt weekly rate. The fair value of this swap agreement was $0.4 million
at December 31, 1999.
Year 2000
- ---------
IPL has not discovered any significant problems associated with its
systems as a result of the year change from 1999 to 2000. It is unlikely that
any such problems will be encountered in the future. However, should such
problems occur, IPL has established a Year 2000 Committee which would act to
correct any problems as a result of the year changeover. It is not likely that
any such occurrences would have a material effect on the financial position or
results of operations of the Company.
Cash Flows
- ----------
Additional information regarding IPL's historical cash flows from
operations, investing and financing for the past three years, including the
capital expenditures of IPL, is disclosed in the Statements of Cash Flows and in
the Notes to Financial Statements.
<PAGE>
RESULTS OF OPERATIONS
Income applicable to common stock decreased by $3.0 million in 1999
compared to 1998. Income applicable to common stock decreased by $3.0 million in
1998 compared to 1997. The following discussion highlights the factors
contributing to these decreases.
Utility Operating Revenues
- --------------------------
Operating revenues in 1999 and 1998 increased from the prior year by $13.4
million and $44.8 million, respectively. The increases in revenues resulted from
the following:
Increase (Decrease)
-------------------
1999 over 1998 1998 over 1997
-------------- --------------
(In Millions)
Electric:
Change in retail KWH sales - net of fuel $ 17.5 $ 14.5
Change in estimate for unbilled revenue 8.0 -
Fuel revenue (0.1) 3.5
Wholesale revenue (9.9) 28.0
DSM tracker revenue 0.8 1.3
Steam revenue (1.1) (2.9)
Other revenue (1.8) 0.4
------ ------
Total change in operating revenues $ 13.4 $ 44.8
====== ======
The increase in retail KWH sales in 1999 primarily was due to economic
growth in Indianapolis. The increase in 1998 also reflected economic growth in
Indianapolis, as well as an increase in cooling degree days during the summer
partially offset by a decrease in heating degree days. Actual and percentage
changes in electric customers and in heating and cooling degree days for these
periods are as follows:
Increase (Decrease)
-------------------
1999 over 1998 1998 over 1997
-------------- --------------
Electric Residential Customers 5,856 1.5% 5,257 1.4%
Commercial & Industrial Customers 451 1.0% 1,169 2.6%
Heating Degree Days 448 10.1% (1,261) (22.2)%
Cooling Degree Days (73) (5.8)% 381 43.8%
A change in the estimate for unbilled revenue was made during 1999. The
changes in fuel revenues in 1999 and 1998 from the prior year reflect
differences in fuel costs billed to customers. Wholesale sales were $41.2
million, $51.1 million and $23.1 million for 1999, 1998 and 1997, respectively.
The decrease in wholesale revenues in 1999 was a result of both planned and
unplanned generating unit outages during 1999. The increase in wholesale
revenues during 1998 reflected increased wholesale marketing efforts and energy
requirements of other utilities. The decrease in other revenues during 1999
reflects decreased service revenues.
Utility Operating Expenses
- --------------------------
Fuel expense decreased in 1999 by $7.2 million due primarily to a
decrease in deferred fuel cost and a 0.3% decrease in generation caused by
unscheduled unit outages. During 1998, fuel expense increased by $16.5 million
primarily as a result of increased total KWH sales.
Other operating expenses decreased $18.3 million in 1999 primarily due to
decreased administrative and general expenses of $10.5 million and increased
sales of emission allowances of $4.8 million (reduced operating expenses) as
well as other cost improvements. The decreased administrative and general
expenses were primarily due to decreased benefits expense as well as the
non-recurrence of a $2.2 million charge in 1998 for a voluntary early retirement
and separation program. During 1998, other operating expenses increased from the
prior year by $12.3 million. The increase in 1998 was partially due to increased
administrative and general expenses of $7.7 million. This increase was due to
the voluntary early retirement and separation program as well as increased
outside services and increased labor costs. Electric distribution expenses
increased $1.7 million and production expenses increased $1.5 million during
1998.
Power purchased increased by $22.6 million during 1999 as a result of the
combination of higher market prices for scheduled summer peaking power and a
$13.0 million increase in replacement power costs due to the unusually high
level of generating unit outages during peak electricity demand in the third
quarter of 1999. Power purchased decreased $0.7 million during 1998 due to
decreased demand charges partially offset by increased purchases of KWH.
Maintenance expenses increased by $4.1 million during 1999 and decreased
by $3.2 million during 1998. These variances primarily reflect the timing of
major generating unit overhauls.
Taxes other than income taxes decreased by $0.9 million during 1999
primarily due to decreased employment taxes. During 1998, taxes other than
income taxes increased $2.0 million from the prior period due to increased
property taxes, gross income taxes and employment taxes.
Income taxes - net increased in both 1999 and 1998 from the prior years by
$4.3 million and $6.9 million, respectively. These changes reflect increases in
pretax operating income.
Other Income And Deductions
- ---------------------------
Allowance for equity funds used during construction did not change during
1999 from the prior period. During 1998, allowance for equity funds used during
construction decreased $2.1 million. In mid-1997, the amortization of deferred
carrying charges on a plant asset ended, contributing to this decrease.
Other-net, which includes the pretax non-operating income from IPL,
increased by $2.3 million during 1999. This increase was primarily due to an
insurance recovery. Other-net decreased by $4.7 million during 1998, as compared
to the prior year. The decrease in 1998 was primarily related to the
non-recurring gain from the sale of a retired plant site in 1997.
During 1998, a gain from the liquidation and termination of an agreement
to purchase power was recognized by IPL in the amount of $12.5 million before
taxes.
Interest Charges
- ----------------
Interest on long-term debt decreased by $0.3 million and $0.4 million in
1999 and 1998, respectively, from the prior years. The decrease in 1999 was due
to decreased interest expense on floating debt due to lower average interest
rates. The decrease in 1998 was due to the redemption of $11.3 million 5 5/8%
Series in May 1997.
Other interest charges increased by $0.5 million during 1999 primarily
due to increased short-term debt borrowings. Other interest charges decreased by
$0.6 million during 1998 from the prior year as a result of decreased interest
on tax assessments and decreased interest on short-term debt borrowings.
Cumulative Effect of Accounting Change
- --------------------------------------
A cumulative effect of accounting change in the amount of $18.3 million,
net of taxes, was recorded during 1997. Effective January 1, 1997, IPL adopted
the unbilled revenue method of accounting for electricity and steam delivered
during the period. Revenues are accrued for services provided but unbilled at
the end of each month (see Notes 1 and 3 in the Notes to Financial Statements).
New Accounting Pronouncement
- ----------------------------
The Financial Accounting Standards Board issued Statement of Financial
Standards No. 133 (SFAS 133), "Accounting for Derivative Instruments and Hedging
Activities," in June 1998. SFAS 137 delayed the effective date of this standard
to all fiscal quarters of all fiscal years beginning after June 15, 2000 (see
Note 1 in the Notes to Financial Statements).
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
-------------------------------------------
INDEPENDENT AUDITORS' REPORT
============================
To the Board of Directors of Indianapolis Power & Light Company:
We have audited the accompanying balance sheets of Indianapolis Power & Light
Company as of December 31, 1999 and 1998, and the related statements of income,
retained earnings and cash flows for each of the three years in the period ended
December 31, 1999. These financial statements are the responsibility of IPL's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such financial statements present fairly, in all material
respects, the financial position of Indianapolis Power & Light Company as of
December 31, 1999 and 1998, and the results of its operations and its cash flows
for each of the three years in the period ended December 31, 1999 in conformity
with generally accepted accounting principles.
As discussed in Note 3 to the financial statements, in 1997 the Company
changed its method of accounting for unbilled revenue.
DELOITTE & TOUCHE LLP
Indianapolis, Indiana
January 20, 2000
<PAGE>
<TABLE>
<CAPTION>
INDIANAPOLIS POWER & LIGHT COMPANY
Statements of Income
For the Years Ended December 31, 1999, 1998 and 1997
- --------------------------------------------------------------------------------------------------------------------
1999 1998 1997
- --------------------------------------------------------------------------------------------------------------------
(In Thousands)
OPERATING REVENUES (Notes 3 and 10):
<S> <C> <C> <C>
Electric $ 800,337 $ 785,835 $ 738,134
Steam 34,315 35,421 38,293
------------ ------------ ------------
Total operating revenues 834,652 821,256 776,427
------------ ------------ ------------
OPERATING EXPENSES:
Operation:
Fuel 173,872 181,036 164,578
Other 137,348 155,610 143,311
Power purchased 29,769 7,170 7,833
Purchased steam 6,391 5,968 7,075
Maintenance 77,637 73,501 76,679
Depreciation and amortization 107,469 103,223 103,230
Taxes other than income taxes 34,190 35,047 33,071
Income taxes - net (Note 9) 84,475 80,190 73,335
------------ ------------ ------------
Total operating expenses 651,151 641,745 609,112
------------ ------------ ------------
OPERATING INCOME 183,501 179,511 167,315
------------ ------------ ------------
OTHER INCOME AND (DEDUCTIONS):
Allowance for equity funds used during construction 1,372 1,389 3,462
Other - net 2,130 (158) 4,507
Gain on termination of agreement (Note 13) - 12,500 -
Income taxes - net (Note 9) (581) (4,196) (1,105)
------------ ------------ ------------
Total other income - net 2,921 9,535 6,864
------------ ------------ ------------
INCOME BEFORE INTEREST CHARGES 186,422 189,046 174,179
------------ ------------ ------------
INTEREST CHARGES:
Interest on long-term debt 38,057 38,395 38,809
Other interest 1,141 675 1,243
Allowance for borrowed funds used during construction (829) (911) (945)
Amortization of redemption premiums and expenses on
debt - net 1,822 1,740 1,670
------------ ------------ ------------
Total interest charges 40,191 39,899 40,777
------------ ------------ ------------
INCOME BEFORE CUMULATIVE EFFECT
OF ACCOUNTING CHANGE 146,231 149,147 133,402
------------ ------------ ------------
CUMULATIVE EFFECT OF ACCOUNTING CHANGE (Note 3) - - 18,347
------------ ------------ ------------
NET INCOME 146,231 149,147 151,749
------------ ------------ ------------
PREFERRED DIVIDEND REQUIREMENTS 3,213 3,119 2,760
------------ ------------ ------------
INCOME APPLICABLE TO COMMON STOCK $ 143,018 $ 146,028 $ 148,989
============ ============ ============
See notes to financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
INDIANAPOLIS POWER & LIGHT COMPANY
Balance Sheets
December 31, 1999 and 1998
- --------------------------------------------------------------------------------------------------------------
ASSETS 1999 1998
- --------------------------------------------------------------------------------------------------------------
(In Thousands)
UTILITY PLANT:
<S> <C> <C>
Utility plant in service (Note 2) $ 2,922,338 $ 2,859,899
Less accumulated depreciation 1,299,122 1,202,356
---------------- ----------------
Utility plant in service - net 1,623,216 1,657,543
Construction work in progress 116,478 80,198
Property held for future use 10,718 10,719
---------------- ----------------
Utility plant - net 1,750,412 1,748,460
---------------- ----------------
OTHER PROPERTY:
At cost, less accumulated depreciation 5,753 5,790
---------------- ----------------
CURRENT ASSETS:
Cash and cash equivalents 16,234 4,250
Accounts receivable and unbilled revenue (less allowance for
doubtful
accounts - 1999, $1,091,000 and 1998, $996,000) (Note 3) 49,599 36,692
Fuel - at average cost 50,985 38,968
Materials and supplies - at average cost 48,106 48,163
Tax refund receivable 3,549 7,643
Prepayments and other current assets 8,120 3,634
---------------- ----------------
Total current assets 176,593 139,350
---------------- ----------------
DEFERRED DEBITS:
Regulatory assets (Note 5) 107,948 116,801
Miscellaneous 8,044 12,665
---------------- ----------------
Total deferred debits 115,992 129,466
---------------- ----------------
TOTAL $ 2,048,750 $ 2,023,066
================ ================
See notes to financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
CAPITALIZATION AND LIABILITIES 1999 1998
- --------------------------------------------------------------------------------------------------------------
(In Thousands)
CAPITALIZATION (See Notes 6 and 7):
<S> <C> <C>
Common shareholder's equity
Common stock, no par, authorized - 20,000,000 shares, issued and outstanding
- 17,206,630 shares in 1999,
17,206,630 shares in 1998 $ 324,537 $ 324,537
Premium and net gain on preferred stock 2,642 2,642
Retained earnings 453,331 440,747
---------------- ---------------
Total common shareholder's equity 780,510 767,926
Cumulative preferred stock 59,135 59,135
Long-term debt (Note 2) 627,951 627,893
---------------- ---------------
Total capitalization 1,467,596 1,454,954
---------------- ---------------
CURRENT LIABILITIES:
Notes payable - banks and commercial paper (Note 8) 49,000 19,200
Accounts payable and accrued expenses 53,437 64,461
Dividends payable 13,668 13,158
Taxes accrued 22,078 18,283
Interest accrued 12,898 13,326
Other current liabilities 13,356 13,731
---------------- ---------------
Total current liabilities 164,437 142,159
---------------- ---------------
DEFERRED CREDITS AND OTHER LONG-TERM LIABILITIES:
Deferred income taxes - net (Note 9) 339,986 328,417
Unamortized investment tax credit 39,226 41,993
Accrued postretirement benefits (Note 11) 4,338 10,768
Accrued pension benefits (Note 11) 29,018 39,953
Miscellaneous 4,149 4,822
---------------- ---------------
Total deferred credits and other long-term liabilities 416,717 425,953
---------------- ---------------
COMMITMENTS AND CONTINGENCIES (Note 12)
TOTAL $ 2,048,750 $ 2,023,066
================ ===============
See notes to financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
INDIANAPOLIS POWER & LIGHT COMPANY
Statements of Cash Flows
For the Years Ended December 31, 1999, 1998 and 1997
- -----------------------------------------------------------------------------------------------------------------------
1999 1998 1997
- -----------------------------------------------------------------------------------------------------------------------
(In Thousands)
CASH FLOWS FROM OPERATIONS:
<S> <C> <C> <C>
Net income $ 146,231 $ 149,147 $ 151,749
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 106,311 100,829 98,908
Amortization of regulatory assets 14,470 14,246 16,210
Deferred income taxes and investment tax credit adjustments - net 6,227 (2,483) 12,669
Allowance for funds used during construction (2,201) (2,300) (4,407)
Cumulative effect of accounting change - before taxes (Note 3) - - (29,915)
Change in certain assets and liabilities:
Accounts receivable - excluding cumulative effect
of accounting change (12,907) 6,361 (5,246)
Fuel, materials and supplies (11,960) (4,483) (500)
Accounts payable (11,024) 491 7,433
Taxes accrued 3,795 (391) (947)
Accrued pension benefits (10,935) 132 2,538
Other - net (3,148) (9,338) (6,200)
------------ ------------- -------------
Net cash provided by operating activities 224,859 252,211 242,292
------------ ------------- -------------
CASH FLOWS FROM INVESTING:
Construction expenditures (103,452) (79,458) (73,130)
Other (5,832) (1,102) (2,333)
------------ ------------- -------------
Net cash used in investing activities (109,284) (80,560) (75,463)
------------ ------------- -------------
CASH FLOWS FROM FINANCING:
Issuance of long-term debt 23,500 - -
Issuance of preferred stock (Note 6) - 50,000 -
Retirement of long-term debt (23,500) - (11,250)
Preferred stock redemptions (Note 6) - - (41,814)
Short-term debt - net 29,800 (4,500) (10,300)
Dividends paid (133,137) (217,362) (107,384)
Other (254) (489) 29
------------ ------------- -------------
Net cash used in financing activities (103,591) (172,351) (170,719)
------------ ------------- -------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 11,984 (700) (3,890)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 4,250 4,950 8,840
------------ ------------- -------------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 16,234 $ 4,250 $ 4,950
============ ============= =============
- -----------------------------------------------------------------------------------------------------------------------
Supplemental disclosures of cash flow information:
Cash paid during the year for:
Interest (net of amount capitalized) $ 39,215 $ 38,644 $ 39,837
============ ============= =============
Income taxes $ 79,004 $ 90,467 $ 75,621
============ ============= =============
See notes to financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
INDIANAPOLIS POWER & LIGHT COMPANY
Statements of Retained Earnings
For the Years Ended December 31, 1999, 1998 and 1997
- -------------------------------------------------------------------------------------------------------------------------------
1999 1998 1997
- -------------------------------------------------------------------------------------------------------------------------------
(In Thousands)
<S> <C> <C> <C>
RETAINED EARNINGS AT BEGINNING OF YEAR $ 440,747 $ 508,626 $ 456,349
NET INCOME 146,231 149,147 151,749
----------- ----------- -----------
Total 586,978 657,773 608,098
DEDUCT:
Cash dividends declared:
Cumulative preferred stock - at prescribed
rate of each series (See Note 6) 3,213 3,119 2,760
Common stock 130,434 213,417 96,712
Capital stock expense - 490 -
-------------- ------------- -------------
Total 133,647 217,026 99,472
-------------- ------------- -------------
RETAINED EARNINGS AT END OF YEAR $ 453,331 $ 440,747 $ 508,626
============== ============= =============
See notes to financial statements.
</TABLE>
<PAGE>
INDIANAPOLIS POWER & LIGHT COMPANY
==================================
Notes to Financial Statements
For the Years Ended December 31, 1999, 1998 and 1997
- --------------------------------------------------------------------------------
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
All the outstanding common stock of Indianapolis Power & Light Company
(IPL) is owned by IPALCO Enterprises, Inc. At December 31, 1999 and 1998, IPL
had a receivable, which is due on demand, for advances made to IPALCO.
Nature of Operations: IPL is engaged principally in providing electric and
steam service to the Indianapolis metropolitan area.
Concentrations of Risk: Substantially all of IPL's business activity is
with customers located within the Indianapolis area. In addition, approximately
66% of IPL's employees are covered by collective bargaining agreements.
Regulation: The retail utility operations of IPL are subject to the
jurisdiction of the Indiana Utility Regulatory Commission (IURC). IPL's
wholesale power transactions are subject to the jurisdiction of the Federal
Energy Regulatory Commission. These agencies regulate IPL's utility business
operations, tariffs, accounting, depreciation allowances, services, security
issues and the sale and acquisition of utility properties. The financial
statements of IPL are based on generally accepted accounting principles,
including the provisions of Statement of Financial Accounting Standards No. 71,
"Accounting for the Effects of Certain Types of Regulation," which gives
recognition to the ratemaking and accounting practices of these agencies.
Revenues: Effective January 1, 1997, IPL adopted the unbilled revenue
method of accounting for electric and steam delivered during the period (see
Note 3). Revenues are accrued for services provided but unbilled at the end of
each month.
A fuel adjustment charge provision, which is established after public
hearing, is applicable to most of the rate schedules of IPL and permits the
billing or crediting of estimated fuel costs above or below the levels included
in such rate schedules. Actual fuel costs in excess of or under estimated fuel
costs billed are deferred or accrued, respectively.
On August 18, 1999, the IURC issued an order that allows for the recovery
of purchased power costs based on a benchmark. This benchmark will be determined
by the calculation of a utility's highest on-system fuel cost. If the cost per
Mwh of power purchases is not greater than the benchmark, then the purchased
power costs should be considered net energy costs that are presumed fuel costs
included in purchased power. If the average cost per Mwh of power purchases is
greater than the benchmark, then the costs are recoverable only through
demonstration of the reasonableness of those purchases to the IURC. The Indiana
Office of Utility Consumer Counselor has appealed that order and the eventual
outcome of this matter is unknown at this time.
Authorized Annual Operating Income: Indiana law requires electric
utilities under the jurisdiction of the IURC to meet operating expense and
income requirements as a condition for approval of requested changes in fuel
adjustment charges. Additionally, customer refunds may result if the utilities'
rolling 12-month operating income, determined at quarterly measurement dates,
exceeds the utilities' authorized annual operating income and cannot be offset
by applicable cumulative net operating income deficiencies. In such a
circumstance, the required customer refund for the quarterly measurement period
is calculated to be one-fourth of the excess annual operating income grossed up
for federal and state taxes as required under I. C.
8-1-2-42.5.
Effective July 1, 1996, IPL's authorized annual jurisdictional electric
net operating income, for purposes of quarterly operating income tests, is $163
million, as established in an IURC order dated August 24, 1995. This level will
be maintained until changed by an IURC order. During 1999, the Commission found
that IPL's rolling annual jurisdictional retail electric operating income was
less than the authorized annual operating income at each of the quarterly
measurement dates (January, April, July and October). At October 31, 1999, IPL's
most recent quarterly measurement date, IPL had a cumulative net operating
deficiency of $128.8 million, of which $10.6 million expires at varying amounts
during the period ending September 1, 2000. The operating deficiency is
calculated by summing the 20 most recent quarterly measurement period annual
results or from the date of the last rate order, whichever is longer. As a
consequence, IPL could, for a period of time, earn above $163 million of
electric jurisdictional retail net operating income without being required to
make a customer refund.
Through the date of IPL's next general electric rate order, IPL is
required to file upward and downward adjustments in fuel cost credits and
charges on a quarterly basis, based on changes in the cost of fuel, irrespective
of its level of earnings.
Pursuant to an order of the IURC, IPL's authorized annual steam net
operating income is $6.2 million, plus any cumulative annual underearnings
occurring during the five-year period subsequent to the implementation of the
new rate tariffs. During 1999, IPL's annual jurisdictional steam operating
income was less than the authorized annual operating income at the January 31,
1999 measurement date.
Allowance For Funds Used During Construction: In accordance with the
prescribed uniform system of accounts, IPL capitalizes an allowance for the net
cost of funds (interest on borrowed funds and a reasonable rate on equity funds)
used for construction purposes during the period of construction with a
corresponding credit to income. IPL capitalized amounts using pretax composite
rates of 9.4%, 9.7% and 9.1% during 1999, 1998 and 1997, respectively.
Utility Plant and Depreciation: Utility plant is stated at original cost
as defined for regulatory purposes. The cost of additions to utility plant and
replacements of retirement units of property, as distinct from renewals of minor
items that are charged to maintenance, are charged to plant accounts. Units of
property replaced or abandoned in the ordinary course of business are retired
from the plant accounts at cost; such amounts plus removal costs, less salvage,
are charged to accumulated depreciation. Depreciation is computed by the
straight-line method based on functional rates approved by the IURC and averaged
3.5% during 1999, 1998 and 1997.
Sale of Accounts Receivable: IPL has sold, on a revolving basis, an
undivided percentage interest in $50 million of its accounts receivable.
Regulatory Assets: Regulatory assets represent deferred costs that have
been included as allowable costs for ratemaking purposes. IPL has recorded
regulatory assets relating to certain costs as authorized by the IURC. Specific
regulatory assets are disclosed in Note 5. As of December 31, 1999, all
nontax-related regulatory assets have been included as allowable costs in orders
of the IURC (see Note 10). IPL is amortizing such regulatory assets to expense
over periods authorized by these orders. Tax-related regulatory assets represent
the net income tax costs to be considered in future regulatory proceedings
generally as the tax related amounts are paid .
In accordance with regulatory treatment, IPL deferred as a regulatory
asset certain post in-service date carrying charges and certain other costs
related to its investment in Petersburg Unit 4. As authorized in the 1995
Electric Rate Settlement, IPL, effective September 1, 1995, is amortizing this
deferral to expense over a life that generally approximates the useful life of
the related facility. Also in accordance with regulatory treatment, IPL defers
as regulatory assets non-sinking fund debt and preferred stock redemption
premiums and expenses, and amortizes such costs over the life of the original
debt, or, in the case of preferred stock redemption premiums, over 20 years.
Derivatives: IPL has only limited involvement with derivative financial
instruments and does not use them for trading purposes. IPL entered into an
interest rate swap agreement as a means of managing the interest rate exposure
on one of its debt facilities. This interest rate swap is accounted for under
the accrual method. Under this method, the differential to be paid or received
on the interest rate swap agreement is recognized over the life of the agreement
in interest expense. Changes in market value of the interest swap accounted for
under the accrual method are not reflected in the accompanying financial
statements.
Income Taxes: Deferred taxes are provided for all significant temporary
differences between book and taxable income. The effects of income taxes are
measured based on enacted laws and rates. Such differences include the use of
accelerated depreciation methods for tax purposes, the use of different book and
tax depreciable lives, rates and in-service dates and the accelerated tax
amortization of pollution control facilities. Deferred tax assets and
liabilities are recognized for the expected future tax consequences of existing
differences between the financial reporting and tax reporting basis of assets
and liabilities. IPL has recorded as regulatory assets and net deferred tax
liabilities, income taxes payable and includable in allowable costs for
ratemaking purposes in future years. Investment tax credits that reduced federal
income taxes in the years they arose have been deferred and are being amortized
to income over the useful lives of the properties in accordance with regulatory
treatment.
IPL participates in a tax sharing agreement with the consolidated IPALCO
group which allocates taxes as if each company had filed a return on a
stand-alone basis.
Cash and Cash Equivalents: IPL considers all highly liquid investments
purchased with original maturities of 90 days or less to be cash equivalents.
Employee Benefit Plans: Substantially all employees of IPL are covered by a
defined benefit pension plan, a defined contribution plan and a group benefits
plan.
The defined benefit pension plan is noncontributory and is funded through
two trusts. Additionally, a select group of management employees of IPL are
covered under a funded supplemental retirement plan. Collectively, these two
plans are referred to as the Plans. Benefits are based on each individual
employee's years of service and compensation. IPL's funding policy is to
contribute annually not less than the minimum required by applicable law, nor
more than the maximum amount that can be deducted for federal income tax
purposes.
The defined contribution plan is sponsored by IPL as the Employees'
Thrift Plan of Indianapolis Power & Light Company (Thrift Plan). Employees elect
to make contributions to the Thrift Plan based on a percentage of their annual
base compensation. Each employee's contribution is matched in amounts up to, but
not exceeding, 4% of the employee's annual base compensation. IPL's
contributions to the Thrift Plan, net of amounts allocated to related parties
were $3.5 million, $3.4 million and $3.3 million in 1999, 1998 and 1997,
respectively.
The group benefits plan is sponsored by IPL and provides certain
health-care and life insurance benefits to active employees and employees who
retire from active service on or after attaining age 55 and have rendered at
least 10 years of service. The postretirement benefit obligations of this plan
are funded through a Voluntary Employee Beneficiary Association (VEBA) Trust.
IPL's policy is to fund the annual actuarially determined postretirement benefit
cost.
New Accounting Pronouncement: Statement of Financial Accounting Standards
No. 133 (SFAS 133), "Accounting for Derivative Instruments and Hedging
Activities," was issued in June 1998. SFAS 137 delayed the effective date of
this standard to all fiscal quarters of all years beginning after June 15, 2000.
This statement establishes accounting and reporting standards for derivative
instruments and for hedging activities. It requires that an entity recognize all
derivatives as either assets or liabilities in the statement of financial
condition and measure those instruments at fair value. If certain conditions are
met, a derivative may be specifically designated as a fair value hedge, a cash
flow hedge, or a hedge of a foreign currency exposure. The accounting for
changes in the fair value of a derivative (that is, gains and losses) depends on
the intended use of the derivative and the resulting designation. Management has
not yet quantified the effect of the new standard on the financial statements.
Use of Management Estimates: The preparation of financial statements in
conformity with generally accepted accounting principles requires that
management make certain estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements. The reported amounts of
revenues and expenses during the reporting period may also be affected by the
estimates and assumptions management is required to make. Actual results may
differ from those estimates. During 1999, IPL changed its estimate for unbilled
revenue which resulted in a $8.0 million increase to unbilled revenue.
Reclassifications: Certain amounts from prior years' financial statements
have been reclassified to conform to the current year presentation.
2. UTILITY PLANT IN SERVICE
The original cost of utility plant in service at December 31, segregated by
functional classifications, follows:
1999 1998
- --------------------------------------------------------------------------------
(In Thousands)
Production................................. $1,735,026 $1,716,786
Transmission............................... 239,976 238,453
Distribution............................... 802,543 761,296
General .................................. 144,793 143,364
----------- ------------
Total utility plant in service.... $2,922,338 $2,859,899
========== ==========
Substantially all of IPL's property is subject to the lien of the
indentures securing IPL's First Mortgage Bonds.
In 1997, IPL retired and sold its C.C. Perry W plant site, including land
and improvements, to the state of Indiana White River State Park Commission at
an approximate pretax net gain of $5.7 million included under the caption OTHER
INCOME AND (DEDUCTIONS), "Other - net."
3. CUMULATIVE EFFECT OF ACCOUNTING CHANGE
In December 1997, IPL changed its method of accounting (retroactive to
January 1, 1997) to record revenues of all electricity and steam delivered
during the period. Prior to 1997, IPL recognized revenues on a cycle basis as
meters were read. The new accounting method more accurately reports revenues in
the period in which electricity and steam is used by customers. The cumulative
effect of the change in accounting at January 1, 1997 was $18.3 million (net of
income taxes of $11.2 million and other taxes of $.4 million). The change had
the effect of decreasing 1997 income before cumulative effect of the accounting
change by $1.9 million (net of taxes).
4. DISCLOSURES ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
The estimated fair value of financial instruments has been determined by
IPL using available market information and appropriate valuation methodologies.
However, considerable judgment is required in interpreting market data to
develop the estimates of fair value. Accordingly, the estimates presented herein
are not necessarily indicative of the amounts that IPL could realize in a
current market exchange. The use of different market assumptions and/or
estimation methodologies may have an effect on the estimated fair value amounts.
Cash and Cash Equivalents and Notes Payable: The carrying amount
approximates fair value due to the short maturity of these instruments.
Long-Term Debt, Including Current Maturities and Sinking Fund
Requirements: Interest rates that are currently available to IPL for issuance of
debt with similar terms and remaining maturities are used to estimate fair
value. The variable rate debt has been included at the face amount for both
carrying amount and fair value. The fair value of the interest rate swap
agreement has been estimated at $.4 million and $(5.7) million, which represents
the amount that IPL would have to pay or receive to enter into an equivalent
agreement at December 31, 1999, and 1998, respectively, with a swap
counterparty. The fair value of the debt outstanding has been determined on the
basis of the specific securities issued and outstanding. Accordingly, the
purpose of this disclosure is not to approximate the value on the basis of how
the debt might be refinanced. At December 31, 1999, and 1998, the carrying
amount of IPL's long-term debt, including current maturities and sinking fund
requirements, and the approximate fair value are as follows:
1999 1998
-------------------------------------------------------------
(In Thousands)
Carrying amount $627,951 $627,893
Approximate fair value 615,071 667,035
5. REGULATORY ASSETS
The amounts of regulatory assets at December 31 are as follows:
1999 1998
- --------------------------------------------------------------------------------
(In Thousands)
Related to deferred taxes (Note 1) $ 49,398 $ 46,823
Postretirement benefit costs in excess of
cash payments and amounts capitalized (Note 11) 4,288 10,720
Unamortized reacquisition premium on debt (Note 1) 21,687 22,301
Unamortized Petersburg Unit 4 carrying charges
and certain other costs (Note 1) 28,119 29,174
Demand side management costs (Note 10) 4,456 7,783
--------- ---------
Total regulatory assets $ 107,948 $ 116,801
========= =========
6. CAPITAL STOCK
Common Stock: There were no changes in IPL common stock during 1999, 1998
and 1997.
Restrictions on the payment of cash dividends or other distributions on
common stock and on the purchase or redemption of such shares are contained in
the indentures securing IPL's First Mortgage Bonds. In addition, pursuant to
IPL's Articles of Incorporation, no dividends may be paid or accrued and no
other distribution may be made on the common stock unless dividends on all
outstanding shares of its preferred stock have been paid or declared and set
apart for payment. All of the retained earnings at December 31, 1999, were free
of such restrictions.
Cumulative Preferred Stock of Subsidiary: Preferred stock shareholders
are entitled to two votes per share for IPL matters, and if four full quarterly
dividends are in default on all shares of the preferred stock then outstanding,
they are entitled to elect the smallest number of IPL Directors to constitute a
majority. Preferred stock is redeemable solely at the option of IPL and can be
redeemed in whole or in part at any time at specific call prices.
On January 13, 1998, IPL issued the 5.65% Preferred Series which is
redeemable at par value, subject to certain restrictions, in whole or in part,
at any time on or after January 1, 2008, at the option of IPL.
At December 31, preferred stock consisted of the following:
December 31, 1999
Shares Call December 31
Outstanding Price 1999 1998
----------- ----- ------ ------
(In Thousands)
Cumulative $100 Par Value,
authorized 2,000,000 shares
4% Series..................... 47,611 $118.00 $4,761 $4,761
4.2% Series................... 19,331 103.00 1,933 1,933
4.6% Series................... 2,481 103.00 248 248
4.8% Series................... 21,930 101.00 2,193 2,193
5.65% Series.................. 500,000 - 50,000 50,000
------- ------- -------
Total cumulative preferred stock... 591,353 $59,135 $59,135
======= ======= =======
During 1999, 1998 and 1997, preferred stock dividends were $3.2 million,
$3.1 million and $2.8 million, respectively.
7. LONG-TERM DEBT
Long-term debt consists of the following:
December 31,
------------
1999 1998
---- ----
Series Due (In Thousands)
------ ---
First Mortgage Bonds:
6.05% February 2004............. $ 80,000 $ 80,000
8% October 2006.............. 58,800 58,800
7 3/8% August 2007............... 80,000 80,000
6.10% * January 2016.............. 41,850 41,850
5.40% * August 2017............... 24,650 24,650
7.45% August 2019............... - 23,500
5.50% * October 2023.............. 30,000 30,000
7.05% February 2024............. 100,000 100,000
6 5/8% * December 2024............. 40,000 40,000
Unamortized discount - net...................... (849) (907)
--------- ---------
Total first mortgage bonds.................. 454,451 477,893
IPL Variable Series Notes
1991* August 2021............... 40,000 40,000
1994A* December 2024............. 20,000 20,000
1995B* January 2023.............. 40,000 40,000
1995C* December 2029............. 30,000 30,000
1996* November 2029............. 20,000 20,000
1999 August 2030............... 23,500 -
--------- ---------
Total long-term debt ....................... $627,951 $627,893
========= =========
* Notes are issued to the city of Petersburg, Indiana, by IPL to secure the loan
of proceeds from various tax-exempt instruments issued by the city.
IPL redeemed the $23.5 million, 7.45% Series bond in October 1999 with
the proceeds from $23.5 million variable rate note issued September 1999.
The IPL Series 1991 note provides for an interest rate that varies with
the tax-exempt commercial paper rate. The IPL 1994A, 1995B, 1995C and 1996 notes
provide for an interest rate which varies with the tax-exempt weekly rate.
Additionally, these notes can be converted into long-term fixed interest rate
instruments by the issuance of an IPL First Mortgage Bond. The notes are
classified as long-term liabilities because IPL maintains a $150 million
long-term credit facility supporting these agreements, which were unused at
December 31, 1999. The IPL Series 1999 note provides for an interest rate which
varies based on tax-exempt auction rates. IPL, at its option, can change the
interest rate mode for these notes to be based on other short-term rates.
The year-end interest rates for the variable rate notes are as follows:
Interest Rate at
December 31
1999 1998
-----------------------------------------------------------------------------
Series 1991 3.14% 3.48%
Series 1994A 3.38% 3.56%
Series 1995B 5.21% 5.21%
Series 1995C 3.41% 3.54%
Series 1996 3.41% 3.54%
Series 1999 3.74% -
In conjunction with the issuance of the 1995B note, IPL entered into an
interest rate swap agreement. Pursuant to the swap agreement, IPL will pay
interest at a fixed rate of 5.21% to a swap counterparty and will receive a
variable rate of interest in return, which is identical to the variable rate
payment made on the 1995B note. The result is to effectively establish a fixed
rate of interest on the 1995B note of 5.21%. The interest rate swap agreement is
accounted for on a settlement basis. IPL is exposed to credit loss in the event
of nonperformance by the counterparty for the net interest differential when
floating rates exceed the fixed maximum rate. However, IPL does not anticipate
nonperformance by the counterparty.
8. LINES OF CREDIT
IPL has committed lines of credit with banks of $55 million used to
provide loans for interim financing. These lines require the payment of
commitment fees. At December 31, 1999, $9 million was outstanding, $40 million
was used to support commercial paper and $6 million was unused. These lines of
credit, based on separate agreements, have expiration dates ranging from
February 2000 to April 2000.
The weighted average interest rate on notes payable and commercial paper
outstanding was 6.12% and 6.13% at December 31, 1999, and 1998, respectively.
9. INCOME TAXES
Federal and state income taxes charged to income are as follows:
<TABLE>
<CAPTION>
1999 1998 1997
- -----------------------------------------------------------------------------------------------------------
Operating Expenses: (In Thousands)
Current income taxes:
<S> <C> <C> <C>
Federal..................................................... $68,093 $72,094 $64,553
State....................................................... 9,208 10,585 9,474
-------- -------- --------
Total current taxes....................................... 77,301 82,679 74,027
-------- -------- --------
Deferred federal income taxes............................... 8,117 (414) 1,444
Deferred state income taxes................................. 1,824 715 803
--------- ---------- ---------
Total deferred income taxes.............................. 9,941 301 2,247
--------- ---------- --------
Net amortization of investment credit......................... (2,767) (2,790) (2,939)
--------- --------- ---------
Total charge to operating expenses........................ 84,475 80,190 73,335
Net debit to other income and deductions...................... 581 4,196 1,105
--------- --------- ---------
85,056 84,386 74,440
Cumulative effect of change in accounting principle........... - - 11,209
--------- --------- ---------
Total federal and state income tax provisions............. $85,056 $84,386 $85,649
========= ========= =========
</TABLE>
The provision for federal income taxes (including net investment tax
credit adjustments) is less than the amount computed by applying the statutory
tax rate to pretax income. The reasons for the difference, stated as a
percentage of pretax income, are as follows:
1999 1998 1997
- -----------------------------------------------------------------------------
Federal statutory tax rate................ 35.0% 35.0% 35.0%
Effect of state income taxes.............. (1.7) (1.8) (1.7)
Amortization of investment tax credits.... (1.2) (1.2) (1.2)
Other - net............................... (0.2) (1.0) (0.9)
----- ----- -----
Effective tax rate...................... 31.9% 31.0% 31.2%
==== ==== ====
The significant items comprising IPL's net deferred tax liability
recognized in the balance sheets as of December 31, 1999, and 1998, are as
follows:
<TABLE>
<CAPTION>
1999 1998
- ------------------------------------------------------------------------------------------------------------
(In Thousands)
Deferred tax liabilities:
<S> <C> <C>
Relating to utility property.......................................... $422,907 $412,922
Other................................................................. 16,072 15,113
---------- ----------
Total deferred tax liabilities.................................... 438,979 428,035
---------- ----------
Deferred tax assets:
Relating to utility property.......................................... 48,417 44,444
Investment tax credit................................................. 23,856 25,547
Employee Benefit Plans................................................ 22,018 24,259
Other................................................................. 3,394 5,260
---------- ----------
Total deferred tax assets......................................... 97,685 99,510
---------- ----------
Net deferred tax liability................................................. 341,294 328,525
Current deferred tax liability........................................ 1,308 108
---------- ----------
Deferred income taxes - net................................................ $339,986 $328,417
========== ==========
</TABLE>
10. RATE MATTERS
Demand Side Management (DSM) Program: In compliance with certain orders,
IPL is deferring certain approved DSM costs and carrying charges. In the
Settlement Agreement approved by the IURC on August 24, 1995, IPL was authorized
to amortize $5.3 million of such costs deferred prior to February 1995, over a
four-year period beginning September 1, 1995. On July 30, 1997, IPL received an
IURC order approving a settlement agreement authorizing IPL to recognize in
rates the existing regulatory asset (consisting of DSM costs deferred after
January 31, 1995), along with carrying charges, and also to approve changes to
IPL's DSM programs. On August 18, 1999, IPL received an IURC order approving a
settlement agreement authorizing IPL to extend its low income single family
residential DSM program through July 30, 2000.
Elect Plan: During 1998, the IURC approved a plan that allows IPL
customers with less than 2,000 kilowatts of demand, an opportunity to choose
optional service or payment plans. This includes a green power option, a fixed
rate per unit of consumption option and a fixed bill option. Customers not
choosing one of these options continue to receive electric service under
existing tariffs.
<PAGE>
11. PENSIONS AND OTHER POSTRETIREMENT BENEFITS
<TABLE>
<CAPTION>
Pension Benefits Other Benefits
--------------------- ----------------------
(In Thousands) 1999 1998 1999 1998
- -------------- ---- ---- ---- ----
Change in benefit obligation
<S> <C> <C> <C> <C>
Benefit obligation at beginning of year $276,638 $254,540 $148,895 $135,982
Service cost 5,845 5,535 3,735 3,503
Interest cost 18,899 18,021 9,989 9,932
Actuarial (gain) loss (11,765) 12,740 (17,263) 5,155
Amendments 764 (1,408) - -
Benefits paid (13,774) (12,790) (5,831) (5,677)
-------- -------- -------- --------
Benefit obligation at end of year 276,607 276,638 139,525 148,895
-------- -------- -------- --------
Change in plan assets
Fair value of plan assets
at beginning of year 290,770 262,126 83,008 68,006
Actual return on plan assets 30,417 37,179 14,820 1,643
Employer contribution 3,324 4,254 18,225 19,036
Benefits paid (13,774) (12,789) (5,831) (5,677)
-------- -------- -------- --------
Fair value of plan assets at end of year 310,737 290,770 110,222 83,008
-------- -------- -------- --------
34,130 14,132 (29,303) (65,887)
Funded status
Unrecognized net gain (70,048) (55,065) (54,405) (30,187)
Unrecognized prior service cost 15,241 15,871 - -
Unrecognized net transition (asset) obligation (8,341) (9,755) 79,370 85,306
Adjustment to recognize minimum liability - (5,136) - -
-------- -------- -------- --------
Accrued benefit cost $(29,018) $(39,953) $ (4,338) $(10,768)
======== ======== ======== ========
Weighted-average assumptions as of
December 31
Discount rate 7.50% 7.00% 7.50% 7.00%
</TABLE>
The defined benefit pension plan had expected returns on plan assets of
9.0%, 8.0% and 8.0% for 1999, 1998 and 1997 respectively. The defined benefit
plan assumed compensation increases to be 5.10% during 1998 and 1997. During
1999, the defined benefit plan began using salary bands to determine future
benefit costs rather than rate of compensation increases. The supplemental
retirement pension plan used an expected return on plan assets of 8.0% for 1999,
1998 and 1997. The supplemental plan assumed compensation increases to be 6.0%
for 1999, 1998 and 1997.
Other benefits used expected rates of return on plan assets of 8.0% for
1999, 1998 and 1997. For measurement purposes, a 6.6% annual rate of increase in
the per capita cost of covered health care benefits was assumed for 2000. The
year in which the ultimate health care cost trend rate of 4.5% will be achieved
is assumed to be 2003.
<TABLE>
<CAPTION>
Pension Benefits Other Benefits
---------------------------------- ----------------------------------
(In Thousands) 1999 1998 1997 1999 1998 1997
---- ---- ---- ---- ---- ----
Components of net periodic benefit cost
<S> <C> <C> <C> <C> <C> <C>
Service cost $ 8,451 $10,617 $ 6,584 $ 3,735 $ 3,503 $ 3,942
Interest cost 18,899 18,021 16,873 9,991 9,932 11,088
Expected return on plan assets (25,417) (20,426) (18,344) (6,482) (5,223) (3,734)
Amortization of transition (asset) obligation (1,414) (1,414) (1,414) 6,105 6,093 6,093
Amortization of prior service cost 1,394 1,124 1,159 - - -
Recognized actuarial gain (2,051) (1,545) (910) (1,551) (1,646) (548)
-------- -------- -------- -------- --------- --------
Periodic benefit cost (138) 6,377 3,948 11,798 12,659 16,841
Less: amounts to other parties (2) 65 60 - - -
-------- -------- -------- -------- --------- --------
Net periodic benefit cost (136) 6,312 3,888 11,798 12,659 16,841
Less: amounts capitalized (48) 339 621 1,888 1,924 2,930
-------- -------- -------- -------- --------- --------
Amount charged to expense $ (88) $ 5,973 $ 3,267 $ 9,910 $10,735 $13,911
======== ======== ======== ======== ========= ========
</TABLE>
Assumed health care cost trend rates have a significant effect on the
amounts reported for the health care plans. A one percentage-point change in
assumed health care cost trend rates would have the following effects:
One Percentage- One Percentage-
(In Thousands) Point Increase Point Decrease
-------------- --------------
Effect on total of service and
interest cost components $ 1,613 $ (1,613)
Effect on postretirement
benefit obligation 15,406 (15,406)
Also, during 1999, 1998 and 1997, IPL expensed postretirement regulatory
asset amortization of $6.4 million each year. The final period of amortization
is August 2000.
12. COMMITMENTS AND CONTINGENCIES
In 2000, IPL anticipates the cost of its construction program to be
approximately $107 million.
IPL is involved in litigation arising in the normal course of business.
While the results of such litigation cannot be predicted with certainty,
management, based upon advice of counsel, believes that the final outcome will
not have a material adverse effect on the financial statements.
With respect to environmental issues, IPL has ongoing discussions with
various regulatory authorities and continues to believe that IPL is in
compliance with its various permits.
13. GAIN ON TERMINATION OF AGREEMENT
During September 1998, a pretax gain of $12.5 million ($7.8 million
after-tax) resulted from the liquidation and termination of an agreement to
purchase up to 150 megawatts of power during the summer months through the year
2000.
14. SEGMENT INFORMATION
Operating segments are components of an enterprise for which separate
financial information is available and is evaluated regularly by the chief
operating decision maker in deciding how to allocate resources and in assessing
performance. IPL's reportable business segments are electric and "all other."
Steam operations of IPL are in the "all other" category. The accounting policies
of the identified segments are consistent with those policies and procedures
described in the summary of significant accounting policies (see Note 1).
Intersegment sales are generally based on prices that reflect the current market
conditions. The following tables provide information about IPL's business
segments:
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
Electric All Other Total Electric All Other Total Electric All Other Total
-------- --------- ----- -------- --------- ----- -------- --------- -----
(In Millions)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Operating
Revenues $ 800 $ 35 $ 835 $ 786 $ 35 $ 821 $ 738 $ 38 $ 776
Depreciation and
Amortization 104 3 107 100 3 103 100 3 103
Pre-tax Operating
Income 263 5 268 255 5 260 233 8 241
Income Taxes 83 1 84 79 1 80 71 2 73
Property - net of
Depreciation 1,674 76 1,750 1,671 77 1,748 1,693 73 1,766
Capital
Expenditures 103 2 105 74 7 81 71 2 73
</TABLE>
15. QUARTERLY RESULTS (UNAUDITED)
Operating results for the years ended December 31, 1999, and 1998, by
quarter, are as follows (in thousands):
<TABLE>
<CAPTION>
1999
----------------------------------------------------------------
March 31 June 30 September 30 December 31
-------- ------- ------------ -----------
<S> <C> <C> <C> <C>
Operating revenues......................... $200,831 $203,010 $228,515 $202,296
Operating income........................... 43,251 49,434 48,414 42,402
Net income................................. 33,820 39,630 38,869 33,913
1998
----------------------------------------------------------------
March 31 June 30 September 30 December 31
-------- ------- ------------ -----------
Operating revenues......................... $190,321 $206,706 $222,028 $202,201
Operating income........................... 40,142 49,198 51,665 38,506
Net income................................. 30,205 39,815 50,147 28,980
</TABLE>
The quarterly figures reflect seasonal and weather-related fluctuations
which are normal to IPL's operations.
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
---------------------------------------------------------------
FINANCIAL DISCLOSURE
--------------------
None.
PART III
--------
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
--------------------------------------------------
Information relating to the directors of the registrant, set
forth in the Information Statement of Indianapolis Power &
Light Company dated March 20, 2000 (the registrant's
Information Statement), under "Directors and Nominees-Election
of 15 Directors" at pages 2-4 is incorporated herein by
reference. Information relating to the registrant's executive
officers is set forth at page I-7 of this Form 10-K under
"Executive Officers of the Registrant at February 29, 2000."
Item 11. EXECUTIVE COMPENSATION
----------------------
Information relating to executive compensation, set forth in
the registrant's Information Statement under "Compensation of
Executive Officers" at page 10, "Compensation of Directors" at
page 6, "Compensation Committee Interlocks and Insider
Participation" at page 5, "Pensions Plans" at page 15, and
"Employment Contracts and Termination of employment and Change
in Control Arrangements" at pages 16-17, is incorporated
herein by reference.
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
--------------------------------------------------------------
Information relating to ownership of the registrant's common
stock by persons known by the registrant to be the beneficial
owners of more than 5% of the outstanding shares of common
stock and by management, set forth in the registrant's
Information Statement under "Voting Securities and Beneficial
Owners" at page 2 is incorporated herein by reference.
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
----------------------------------------------
Information relating to certain relationships and related
transactions, set forth in the registrant's Information
Statement under "Certain Business Relationships" at page 6, is
incorporated herein by reference.
<PAGE>
PART IV
-------
Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
- -------- ---------------------------------------------------------------
(a) The Financial Statements under this Item 14 (a) 1
filed in this Form 10-K are those of Indianapolis
Power & Light Company.
1. Financial Statements
--------------------
Included in Part II of this report:
Independent Auditors' Report
Statements of Income for the Years Ended
December 31, 1999, 1998 and 1997
Balance Sheets, December 31, 1999 and 1998
Statements of Cash Flows for the Years
Ended December 31, 1999, 1998 and 1997
Statements of Retained Earnings for the Years
Ended December 31, 1999, 1998 and 1997
Notes to Financial Statements
2. Exhibits
--------
The Exhibit Index beginning on page IV-5 of
this Annual Report on Form 10-K lists the exhibits
that are filed as part of this report.
3. Financial Statement Schedules
-----------------------------
None
(b) Reports on Form 8-K
None
<PAGE>
<TABLE>
<CAPTION>
INDIANAPOLIS POWER & LIGHT COMPANY EXHIBIT 12.1
Ratio of Earnings to Fixed Charges
YEARS ENDED DECEMBER 31,
------------------------------------------------------
1999 1998 1997
-------------- -------------- -------------
(Thousands of Dollars)
Earnings, as defined:
<S> <C> <C> <C>
Net income (1) $146,231 $149,147 $133,402
Income taxes 85,056 84,386 74,440
Fixed charges, as below 41,094 40,991 41,893
-------------- -------------- -------------
Total earnings, as defined $272,381 $274,524 $249,735
============== ============== =============
Fixed charges, as defined:
Interest charges $41,020 $40,810 $41,721
Rental interest factor 74 181 172
-------------- -------------- -------------
Total fixed charges, as defined $41,094 $40,991 $41,893
============== ============== =============
Ratio of earnings to fixed charges 6.63 6.70 5.96
============== ============== =============
(1) 1997 Net income excludes after-tax effect of cumulative effect
of accounting change
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ John R. Hodowal
------------------------
(John R. Hodowal, Chairman
of the Board and President)
Date: February 29, 2000
-----------------
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
(i) Principal Executive Officer:
/s/ John R. Hodowal Chairman of the Board February 29, 2000
------------------------------ and Chief Executive
(John R. Hodowal) Officer
(ii) Principal Financial Officer:
/s/ John R. Brehm Senior Vice President- February 29, 2000
------------------------------ Finance
(John R. Brehm)
(iii) Principal Accounting Officer:
/s/ Stephen J. Plunkett Controller February 29, 2000
------------------------------
(Stephen J. Plunkett)
(iv) A majority of the Board of Directors of Indianapolis Power & Light
Company:
/s/ Joseph D. Barnett, Jr. Director February 29, 2000
- ----------------------------
(Joseph D. Barnett, Jr.)
/s/ Daniel R. Coats Director February 29, 2000
- -----------------------------
(Daniel R. Coats)
/s/ Mitchell E. Daniels, Jr. Director February 29, 2000
- --------------------------------------
(Mitchell E. Daniels, Jr.)
/s/ Rexford C. Early Director February 29, 2000
- --------------------------------
(Rexford C. Early)
/s/ Otto N. Frenzel III Director February 29, 2000
- -------------------------------
(Otto N. Frenzel III)
/s/ Max L. Gibson Director February 29, 2000
- --------------------------------
(Max L. Gibson)
/s/ John R. Hodowal Director February 29, 2000
- -------------------------------
(John R. Hodowal)
/s/ Ramon L. Humke Director February 29, 2000
- ----------------------------
(Ramon L. Humke)
/s/ Andre B. Lacy Director February 29, 2000
- -------------------------------
(Andre B. Lacy)
/s/ L. Ben Lytle Director February 29, 2000
- ----------------------------------
(L. Ben Lytle)
/s/ Michael S. Maurer Director February 29, 2000
- ---------------------------------------
(Michael S. Maurer)
/s/ Sallie W. Rowland Director February 29, 2000
- -----------------------------
(Sallie W. Rowland)
/s/ Thomas H. Sams Director February 29, 2000
- ----------------------------
(Thomas H. Sams)
EXHIBIT INDEX
-------------
Copies of documents listed below which are identified with an asterisk (*)
are incorporated herein by reference and made a part hereof. The management
contracts or compensatory plans are marked with a double asterisk (**) after the
description of the contract or plan.
Exhibit
No. Description
--- -----------
3.1* Articles of Incorporation of Indianapolis Power & Light Company,
as amended. (Exhibit 3.1 to the Form 10-K dated 12-31-97.)
3.2* Bylaws of Indianapolis Power & Light Company, as amended. (Exhibit
3.2 to the Form 10-Q dated 3-31-99.)
4.1* Mortgage and Deed of Trust, dated as of May 1, 1940, between
Indianapolis Power & Light Company and American National Bank and
Trust Company of Chicago, Trustee, as supplemented and modified by 30
Supplemental Indentures.
Exhibits D in File No. 2-4396; B-1 in File No. 2-6210; 7-C File
No. 2-7944; 7-D in File No.2-72944; 7-E in File No. 2-8106; 7-F in
File No. 2-8749; 7-G in File No. 2-8749; 4-Q in File No.2-10052; 2-I
in File No. 2-12488; 2-J in File No. 2-13903; 2-K in File No. 2-22553;
2-L in File No.2-24581; 2-M in File No. 2-26156; 4-D in File
No. 2-26884; 2-D in File No. 2-38332; Exhibit A to Form 8-K for
October 1970; Exhibit 2-F in File No. 2-47162; 2-F in File
No. 2-50260; 2-G in File No. 2-50260; 2-F in File No. 2-53541;
2E in File No. 2-55154; 2E in File no. 2-60819; 2F in File
No. 2-60819; 2-G in File No. 2-60819; Exhibit A to Form 10-Q for the
quarter ended 9-30-78 File No. 1-3132; 13-4 in File No. 2-73213;
Exhibit 4 in File No. 2-93092. Twenty-eighth, Twenty-ninth and
Thirtieth Supplemental Indentures. (Form 10-K dated for year ended
12-31-85.)
4.2 Supplemental Indentures 32 through 42 as follows:
Thirty-Second Supplemental Indenture dated as of June 1, 1989.
Thirty-Third Supplemental Indenture dated as of August 1, 1989.
Thirty-Fourth Supplemental Indenture dated as of October 15, 1991.
Thirty-Fifth Supplemental Indenture dated as of August 1, 1992.
Thirty-Sixth Supplemental Indenture dated as of April 1, 1993.
Thirty-Seventh Supplemental Indenture dated as of October 1, 1993.
Thirty-Eighth Supplemental Indenture dated as of October 1, 1993.
Thirty-Ninth Supplemental Indenture dated as of February 1, 1994.
Fortieth Supplemental Indenture dated as of February 1, 1994.
Forty-First Supplemental Indenture dated as of January 15, 1995.
Forty-Second Supplemental Indenture dated as of October 1, 1995.
10.1* Interconnection Agreement, dated December 30, 1960, between
IPL and Indiana & Michigan Electric Company (nka Indiana
Michigan Power Company) as modified through Modification 17
and Addendum IV. (Exhibit 10.6 to the Form 10-K dated 12-31-95.)
10.2 Interconnection Agreement dated May 1, 1992, among Indianapolis Power
& Light Company, PSI Energy, Inc. and CINERGY Services, Inc. as
modified through Amendment Number 8.
10.3* Facilities Agreement effective in 1968 among Indianapolis Power &
Light Company, Public Service Company of Indiana, Inc. and Indiana
& Michigan Electric Company. (Exhibit 5-G in File No.2-28756.)
10.4 Facilities Agreement dated August 16, 1977, between Indianapolis
Power & Light Company and Public Service Company of Indiana, Inc.,
as modified through Amendment Number 3.
10.5* East Central Area Reliability Agreement dated August 1, 1967, between
Indianapolis Power & Light Company and 23 other electric utility
companies as supplemented. (Exhibit 10.10 to the Form 10-K dated
12-31-96.)
10.6* Interconnection Agreement dated December 2, 1969, between Indianapolis
Power & Light Company and Southern Indiana Gas and Electric Company as
modified through Modification Number 9. (Exhibit 10.11 to the Form
10-K dated 12-31-95).
10.7 Interconnection Agreement dated December 1, 1981, between Indianapolis
Power & Light Company and Hoosier Energy Rural Electric Cooperative,
Inc., as modified through Modification 5.
10.8* Interconnection Agreement, dated October 7, 1987, between Indianapolis
Power & Light Company and Wabash Valley Power Association, as modified
through Modification 1. (Exhibit 10.13 to the Form 10-K dated 12-31-95).
10.9* Interchange Agreement between Indianapolis Power & Light Company and
ENRON Power Marketing, Inc. dated August 1, 1995. (Exhibit 10.14 to
the Form 10-K dated 12-31-95).
10.10* Interconnection Agreement between Indianapolis Power & Light
Company and Indiana Municipal Power Agency as modified through
Modification 1. (Exhibit 10.15 to the Form 10-K dated
12-31-95).
10.11* Employment Agreement by and among IPALCO Enterprises, Inc. and
John R. Hodowal dated July 29, 1986. (Exhibit 10.32 to the Form 10-K
dated 12-31-94.) **
10.12* Directors' and Officers' Liability Insurance Policy No. DO392B1A97
effective June 1, 1998 to June 1, 1999. (Exhibit 10.1 to the Form 10-Q
dated 6-30-99) **
10.13* Unfunded Deferred Compensation Plan for IPALCO Enterprises, Inc.
and Indianapolis Power & Light Company Officers and Directors as
amended and restated effective January 1, 1999. (Exhibit 10.17
to the Form 10-K dated 12-31-98.) **
10.14 Indianapolis Power & Light Company Supplemental Retirement Plan and
Trust Agreement For a Select Group of Management Employees as modified
through Amendment No. 2. **
10.15* 1999 Management Incentive Program. (Exhibit 10.2 to the Form 10-Q dated
6-30-99) **
10.16 Form of Termination Benefits Agreement together with schedule
of parties to, and dates of, the Termination Benefits Agreements. **
10.17 Termination Benefits Agreement between IPALCO Enterprises, Inc. and
Ramon L. Humke. **
12.1 Ratio of Earnings to Fixed Charges.
21.1 Subsidiaries of the Registrant.
27.1 Financial Data Schedule.
EXHIBIT 4.2
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
Trustee
Thirty-Second Supplemental Indenture
Dated as of June 1, 1989
ESTABISHING FIRST MORTGAGE BONDS,
9 5/8% Series, Due 2019
TABLE OF CONTENTS*
OF
THIRTY-SECOND SUPPLEMENTAL INDENTURE
OF
INDIANAPOLIS POWER & LIGHT COMPANY
Page
PARTIES 1
RECITALS 1
SECTION 1 Granting clauses 3
Part I Electric Distributing Systems 3
Part II Steam and Hot Water Distributing Systems 4
Part III Indeterminate Permits and Franchises 4
Part IV Other Property 5
General and after-acquired title 6
SECTION 2 Designation of Thirty-First series of bonds and
kind and denominations thereof 6
Record date for payment of interest 6
Designation of American National Bank and Trust
Company of Chicago as paying agent 7
Exchange of bonds 8
Transfer of bonds 8
Series limited to $50,000,000 8
SECTION 3 Form of fully registered bond 9
Form of Trustee's certificate on bonds 10
SECTION 4 Temporary bonds 14
SECTION 5 Annual Payments Maintenance & Improvement Fund 14
SECTION 6 Compliance with Section 47 of Original Mortgage
with respect to dividend restrictions 14
SECTION 7 Condition of redemption prior to June 1, 1994 14
SECTION 8 Acceptance of trusts by Trustee and conditions
of acceptance 15
SECTION 9 Successors and Assigns 15
SECTION 10 Limitation of rights hereunder 15
*Table of contents is not part of the Thirty-Second
Supplemental Indenture and should not be considered such.
It is included herein only for purposes of convenient
reference.
SECTION 11 Compliance with terms, provisions and
conditions of Mortgage 16
SECTION 12 Execution in counterparts 16
TESTIMONIUM 17
SIGNATURES AND SEALS 17
ACKNOWLEDGEMENTS 18
This Thirty-Second Supplemental Indenture, dated as
of June 1, 1989, between INDIANAPOLIS POWER & LIGHT
COMPANY, a corporation of the State of Indiana,
hereinafter sometimes called the "Company," party of the
first part, and AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, a national banking association, as Trustee,
hereinafter sometimes called the "Trustee," party of the
second part;
WHEREAS, the Company by a Mortgage and Deed of Trust
(hereinafter sometimes called the "Original Mortgage"
when referred to as existing prior to any supplement
thereto or modification thereof, and the "Mortgage" when
referred to as now or heretofore supplemented and
modified) dated as of May 1, 1940, made to said American
National Bank and Trust Company of Chicago, as Trustee,
to secure the payment of the bonds issued from time to
time under the Mortgage for the purposes of and subject
to the limitations specified in the Mortgage, and to
secure the performance of the covenants therein
contained, conveyed to the Trustee thereunder upon
certain trusts, terms and conditions, and with and
subject to certain provisos and covenants therein
contained, all and singular the property, rights and
franchises which the Company then owned or should
thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any
indenture supplemental thereto, to which Mortgage
reference is hereby made for greater certainty; and
WHEREAS, the Original Mortgage has been supplemented
and modified by supplemental indentures dated as of May
1, 1942, as of February 1, 1948, as of April 1, 1949, as
of October 1, 1949, as of February 1, 1951, as of March
1, 1953, as of June 1, 1956, as of March 1, 1958, as of
October 1, 1960, as of August 1, 1964, as of April 1,
1966, as of May 1, 1967, as of May 1, 1968, as of October
1, 1970, as of March 1, 1972, as of March 15, 1973, as of
February 15, 1974, as of August 15, 1974, as of September
15, 1975, as of June 1, 1976, as of July 1, 1976, as of
August 1, 1977, as of September 1, 1978, as of August 1,
1981, as of November 1, 1983, as of November 1, 1984, as
of December 1, 1984, as of September 1, 1985 and as of
October 1, 1986; and
WHEREAS, Section 8 of the Original Mortgage
provides, among other things, that the form of each
series of bonds (other than the initial issue of bonds)
issued thereunder shall be established by an indenture
supplemental thereto authorized by resolution of the
Board of Directors of the Company, and that the form of
each series, as established by the Board of Directors,
shall specify the descriptive title of the bonds and
various other terms thereof, and may also contain other
provisions as the Board of Directors may, in its
discretion, cause to be inserted therein expressing or
referring to the terms and conditions upon which such
bonds are to be issued and secured under the Original
Mortgage or any indenture supplemental thereto or in
modification thereof; and
WHEREAS, the Company now desires to provide for the
establishment, execution, authentication and delivery
under the Mortgage of bonds of a series to be known as
its "First Mortgage Bonds, 9 5/8% Series, due 2019" (the
bonds of said series being hereinafter sometimes referred
to as the "2019 Bonds"), limited to the aggregate
principal amount of Fifty Million Dollars ($50,000,000);
and
WHEREAS, all things necessary to make the 2019 Bonds
hereinafter described, when duly executed by the Company
and authenticated and delivered by the Trustee, valid,
binding and legal obligations of the Company, and to make
this Thirty-Second Supplemental Indenture a valid and
binding agreement supplemental to the Original Mortgage,
have been done and performed; and
WHEREAS, the execution and delivery by the Company
of this Thirty-Second Supplemental Indenture, and the
terms of the 2019 Bonds, have been duly authorized by the
Board of Directors of the Company by appropriate
resolutions of said Board; and
WHEREAS, it is provided in and by the Original
Mortgage that the Company will execute and deliver such
further instruments and do such further acts as may be
necessary or proper to carry out more effectually the
purposes of the Mortgage, and to make subject to the lien
thereof any property thereafter acquired and intended to
be subject to the lien thereof; and
WHEREAS, the Company has, since the date of
execution and delivery of the Original Mortgage,
purchased and acquired property and desires by this
Thirty-Second Supplemental Indenture specifically to
convey to the Trustee such property for the better
protection and security of the bonds issued and to be
issued under the Original Mortgage, or any indenture
supplemental thereto;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the acceptance or
purchase of the 2019 Bonds by the registered owners
thereof, and of the sum of one dollar, lawful money of
the United States of America, to the Company duly paid by
the Trustee at or before the execution and delivery of
this Thirty-Second Supplemental Indenture, the receipt
whereof is hereby acknowledged, the Company and the
Trustee, respectively, have entered into, executed and
delivered this Thirty-Second Supplemental Indenture, for
the uses and purposes hereinafter expressed, that is to
say:
SECTION 1. The Company has granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, and by these presents
does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm
(subject, however, to permitted encumbrances as defined
in the Original Mortgage), unto said American National
Bank and Trust Company of Chicago, as Trustee, as herein
provided, and its successors in the trusts declared in
the Original Mortgage and herein, all of the property,
real, personal and mixed, tangible and intangible, of
every kind, character and description which the Company
has acquired since the execution and delivery of the
Original Mortgage and now owns (except property, rights
and assets of a character similar to that excluded from
the lien and operation of the Mortgage by the Granting
Clauses of the Original Mortgage, which property, rights
and assets are excluded from the lien and operation of
the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality
of the foregoing, the following described property
situated within the state of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company
acquired by it after May 1, 1940, the date of the
Original Mortgage, and located in the Counties of
Bartholomew, Boone, Daviess, Greene, Hamilton, Hancock,
Hendricks, Johnson, Knox, Madison, Marion, Monroe, Morgan,
Owen, Pike, Putnam, Shelby and Sullivan, State of
Indiana; and any additions to or extensions of any such
systems, together with the buildings, erections,
structures, transmission lines, power stations, sub-
stations, engines, boilers, condensers, pumps, turbines,
machinery, tools, conduits, manholes, insulators,
dynamos, motors, lamps, cables, wires, poles, towers,
crossarms, piers, abutments, switchboard equipment,
meters, appliances, instruments, apparatus,
appurtenances, maps, records, ledgers, contracts,
facilities and other property or equipment used or
provided for use in connection with the construction,
maintenance, repair and operation thereof; together also
with all of the rights, privileges, rights-of-way,
franchises, licenses, grants, liberties, immunities,
ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and
operation of said systems.
PART II.
STEAM AND HOT WATER DISTRIBUING SYSTEMS.
All the steam and hot water distributing systems
acquired by the Company after May 1, 1940, the date of
the Original Mortgage, and located in the City of
Indianapolis, Marion County, Indiana, and any additions
to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters,
engines, tanks, pipe lines, mains, connections, service
pipes, meters, tools, instruments, appliances, apparatus,
facilities, machinery and other property and equipment
used or provided for use in the construction,
maintenance, repair and operation thereof; and together
also with all of the rights, privileges, rights-of-way,
franchises, licenses, grants, liberties, immunities,
ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and
operation of said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances,
licenses, and other authorizations by or from any state,
county, municipality, or other governmental authority,
acquired by the Company after May 1, 1940, the date of
the Original Mortgage, including particularly, but not
limited to, any indeterminate permits under the Public
Service Commission Act of the State of Indiana, and all
Acts amendatory thereof and supplemental thereto, and all
right, title and interest therein now owned by the
Company, and all renewals, extensions and modifications
of said indeterminate permits, franchises, ordinances,
licenses, and other authorizations, and of the
indeterminate permits, franchises, ordinances, licenses,
ad other authorizations referred to in Part VII of the
Granting Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed
(except any in the Mortgage expressly excepted), now
owned by the Company and wheresoever situated, including
(without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the
foregoing or of any general description contained in the
Mortgage) all lands, flowage rights, water rights,
flumes, raceways, dams, rights-of-ways and roads; all
plants for the generation of electricity by water, steam
and/or other power, power houses, telephone systems,
water systems, steam heat and power plants, hot water
plants, sub-stations, transmission lines, distribution
systems, bridges, culverts and tracks; all offices,
buildings and structures and other equipment thereof; all
machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors;
all appliances whether electrical, gas or mechanical,
conduits, cables and lines; all pipes whether for water,
steam heat and power, or other purposes; all mains and
pipes, service pipes, fittings, valves and connections,
poles, wires, tools, implements, apparatus, furniture and
chattels; all municipal franchises, indeterminate
permits, and other permits; all lines for the
transportation, transmission and/or distribution of
electric current, steam heat and power or water for any
purpose, including towers, poles, wires, cables, pipes,
conduits and all apparatus for use in connection
therewith; all real estate, lands, leases, leaseholds;
all contracts, whether heat, light, power, water or
street lighting contracts; all easements, servitudes,
licenses, permits, rights, powers, franchises,
privileges, rights-of-way and other rights in or relating
to real estate or the occupancy of the same and (except
as hereinafter or in the Mortgage expressly excepted) all
the right, title and interest of the Company in and to all
other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described or referred to;
TOGETHER WITH all and singular the tenements,
hereditaments and appurtenances belonging or in anywise
appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 64
of the Original Mortgage), the tools, rents, revenues,
issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the
aforesaid property, indeterminate permits, franchises,
ordinances, licenses and other authorizations and every
part and parcel thereof.
SECTION 2. There shall be and is hereby established
a series of bonds, limited in aggregate principal amount
to Fifty Million Dollars ($50,000,000) to be issued under
and secured by the Mortgage, to be designated "9 5/8%
Series, due 2019", each of which shall also bear the
descriptive title "First Mortgage Bonds"; said bonds shall
mature on June 1, 2019, and shall be issued only as fully
registered bonds without coupons in the denomination of one
thousand dollars and any larger denomination which is a multiple
of one thousand dollars; they shall bear interest from
the beginning of the current interest period during which
each bond is dated, at the rate per annum designated in
the title thereof, payable semi-annually, on June 1 and
December 1 of each year; and the principal of, premium,
if any, and interest on each said bond shall be payable
in lawful money of the United States of America at the
office or agency of the Company in the City of Chicago,
Illinois. The person in whose name any such bond is
registered at the close of business on any record date
(as hereinafter defined) with respect to any interest
payment date shall be entitled to receive the interest
payable on such interest payment date, except if and to
the extent the Company shall default in the payment of
the interest due on such interest payment date, in which
case such defaulted interest shall be paid to the person
in whose name such bond is registered on the date of
payment of such defaulted interest or on a subsequent
record date for such payment if one shall have been
established as hereinafter provided. A subsequent record
date with respect to payment of interest in default may
be established by or in behalf of the Company by notice
mailed to the holders of the 2019 Bonds not less than ten
(10) days preceding such record date, which record date
shall not be more than thirty (30) days prior to the
subsequent interest payment date. The term "record date"
as used in this Section with respect to any regular
interest payment date shall mean the tenth day next
preceding such interest payment date, or, if such tenth
day shall be a legal holiday or a day on which banking
institutions in the City of Chicago, Illinois, are
authorized by law to close, the day next succeeding such
tenth day which shall not be a legal holiday or a day on
which such institutions are authorized to close.
American National Bank and Trust Company of Chicago
is hereby designated and appointed the office and agency
of the Company for the payment of the principal of,
premium, if any, and interest on the 2019 Bonds and for
the registration, transfer and exchange of such bonds as
hereinafter provided; all reference herein to the office
or agency of the Company for the payment of the principal
of, premium, if any, and interest on the 2019 Bonds, or
the registration, transfer or exchange thereof, being to
American National Bank and Trust Company of Chicago. In
the event of the resignation or inability to act of
American National Bank and Trust Company of Chicago, then
a successor agent for all such purposes in the City of
Chicago, Illinois, shall be appointed by the Board of
Directors of the Company.
The 2019 Bonds shall be dated as of the date of
authentication thereof, except as otherwise provided in
Section 10 of the Original Mortgage.
Upon the notice and in the manner and with the
effect provided in the Mortgage and in this Section 2,
the 2019 Bonds shall be redeemable prior to the maturity
thereof, as a whole at any time or in part from time to
time, at the option of the Company, at the principal
amount thereof and accrued interest to the date of
redemption, together with a premium equal to a percentage
of the principal amount thereof set forth under the
heading "Redemption Premium" in the form of 2019 Bonds
hereinafter recited, if redeemed otherwise than by the
applicant of monies deposited with the Trustee
representing the proceeds of mortgaged and pledged
property taken by the exercise of the power of eminent
domain or otherwise as provided in paragraph B of Section
69 of the Mortgage, provided, however, that prior to June
1, 1994, none of the 2019 Bonds may be redeemed, directly
or indirectly, from the proceeds of or in anticipation of
any refunding operation involving the incurring of debt
which has an interest cost to the Company, computed in
accordance with generally accepted financial practice of
less than 9.625 per centum per annum.
Upon the notice and in the manner and with the
effect provided in the Mortgage and in this Section 2,
the 2019 Bonds shall be redeemable by the Company prior
to the maturity thereof out of monies deposited with the
Trustee representing the proceeds of mortgaged and
pledged property taken by the exercise of the power of
eminent domain or otherwise as provided in paragraph B of
Section 69 of the Mortgage, at the principal amount of
the 2019 Bonds so to be redeemed and accrued interest to
the date of redemption.
The notice required for the redemption of the 2019
Bonds shall be as provided in Section 59 of the Mortgage.
At the option of the holder, any 2019 Bond, upon
surrender thereof at said office or agency of the Company
together with a written instrument of transfer in form
approved by the Company duly executed by the holder or by
his duly authorized attorney, shall be exchangeable for a
like aggregate principal amount of fully registered bonds
of the same series of other authorized denominations.
The 2019 Bonds shall be transferable on the books of
the Company at said office or agency of the Company in
the City of Chicago, Illinois, by the registered holder
thereof, in person or by his duly authorized attorney,
upon surrender thereof for cancellation.
The Company shall not be required to make transfers
or exchanges of any of the 2019 Bonds for a period of ten
(10) days next preceding any interest payment date of
said bonds.
No charge shall be made upon any transfer or
exchange of any of the 2019 Bonds other than for any tax
or taxes or other governmental charge required to be paid
by the Company.
The 2019 Bonds shall be limited to an aggregate
principal amount of Fifty Million Dollars ($50,000,000)
and shall be issued under the provisions of Article VI
and Article VII of the Original Mortgage.
SECTION 3. The 2019 Bonds, and the Trustee's
Certificate to be endorsed thereon, shall be in the
following forms, respectively:
[FORM OF FACE OF BOND]
INDIANPOLIS POWER & LIGHT COMPANY
FIRST MORTGAGE BOND, 9 5/8% SERIES, DUE 2019
Due June 1, 2019
No. ______ $______
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of
the State of Indiana (hereinafter called the Company),
for value received, hereby promises to pay to
or registered
assigns, on June 1, 2019, at the office or agency of the
Company in the City of Chicago, Illinois,
Dollars in lawful money of the United States of America,
and to pay to the registered owner hereof interest
thereon from the first day of June or the first day of
December next preceding the date of this bond, at the
rate of 9 5/8 per centum per annum in like lawful money,
at said office or agency on June 1 and December 1 in each
year, until the Company's obligation with respect to the
payment of such principal shall have been discharged.
The interest payable hereunder on June 1 or December 1
will, subject to the exception provided in Section 2 of
the Thirty-Second Supplemental Indenture hereinafter
mentioned, be paid to the person in whose name this bond
is registered at the close of business on the record
date, which shall be the tenth day next preceding such
interest payment date or, if such tenth day shall be a
legal holiday or a day on which banking institutions in
the City of Chicago, Illinois, are authorized by law to
close, the day next succeeding such tenth day which shall
not be a legal holiday or a day on which such
institutions are authorized to close.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS
BOND SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH IN THIS PLACE.
This bond shall not become obligatory until American
National Bank and Trust Company of Chicago, the Trustee
under the Mortgage, or its successor thereunder, shall
have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, Indianapolis Power & Light
Company has caused this bond to be signed in its name by
its President or one of its Vice-Presidents, by his
signature or a facsimile thereof, and a facsimile of its
corporate seal to be imprinted hereon, attested by its
Secretary or one of its Assistant Secretaries, by his
signature or a facsimile thereof.
INDIANAPOLIS POWER & LIGHT
COMPANY
Dated ______________ By________________________________
President
Attest:
By ___________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE ON BONDS]
Trustee's Certificate
This bond is one of the bonds, of the series herein
designated, provided for in the within-mentioned Mortgage
and Thirty-Second Supplemental Indenture.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF
CHICAGO, Trustee
By_______________________________
Authorized Signature
[FORM OF REVERSE SIDE OF BOND]
INDIANAPOLIS POWER & LIGHT COMPANY
FIRST MORTGAGE BOND, 9 5/8% SERIES, DUE 2019
Due June 1, 2019
This bond is one of an issue of bonds of the
Company, issuable in series, and is one of a series known
as its First Mortgage Bonds, 9 5/8% Series, due 2019
(herein sometimes called the "2019 Bonds") limited in
aggregate principal amount to Fifty Million Dollars
($50,000,000) and established by a Thirty-Second
Supplemental Indenture, dated as of June 1, 1989, all
bonds of all series issued and to be issued under and
equally secured (except insofar as any sinking or other
fund, established in accordance with the provisions of
the Mortgage hereinafter mentioned, may afford additional
security for the bonds of any particular series) by a
Mortgage and Deed of Trust, dated as of May 1, 1940,
executed by the Company to American National Bank and
Trust Company of Chicago, as Trustee (which Mortgage and
Deed of Trust as supplemented and modified by all
supplemental indentures thereto is herein referred to as
the "Mortgage"), to which Mortgage reference is made for
a description of the property mortgaged and pledged, the
nature and extent of the security, the rights of the
bearers or registered owners of the bonds in respect of
such security, the duties and immunities of the Trustee
and the terms and conditions upon which the bonds are
secured.
With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or of the holders of
the bonds and/or coupons and/or the terms and provisions
of the Mortgage and/or any instruments supplemental
thereto may be modified or altered by affirmative vote of
the holders of at least sixty-six and two-thirds per
centum (66 2/3%) in principal amount of the bonds
affected by such modification or alteration then
outstanding under the Mortgage (excluding bonds
disqualified from voting by reason of the Company's
interest therein as provided in the Mortgage); provided
that no such modification or alteration shall permit the
extension of the maturity of the principal of this bond
or the reduction in the rate of interest hereon or any
other modification in the terms of payment of such
principal or interest without the consent of the holder
hereof. The principal hereof may be declared or may
become due and payable prior to the stated date of the
maturity hereof, on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence
of a completed default as in the Mortgage provided.
The 2019 Bonds are issuable only in fully registered
form without coupons in the denomination of one thousand
dollars and any larger denomination which is a multiple
of one thousand dollars. In the manner and upon the
payment of the charges hereinafter mentioned, the 2019
Bonds, upon surrender thereof at the office or agency of
the Company in the City of Chicago, Illinois, together
with a written instrument of transfer in form approved by
the Company duly executed by the registered holder or by
his duly authorized attorney, are exchangeable for a like
aggregate principal amount of fully registered bonds of
the same series of other authorized denominations.
This bond is transferable as prescribed in the
Mortgage by the registered owner hereof in person, or by
his duly authorized attorney, at the office or agency of
the Company in the City of Chicago, Illinois, upon
surrender and cancellation of this bond and upon
presentation of a written instrument of transfer, duly
executed and upon payment of the charges hereinafter
mentioned, and, thereupon, a new fully registered bond of
the same series for a like principal amount will be
issued to the transferee in exchange herefor as provided
in the Mortgage. The Company and the Trustee may deem
and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose
of receiving payment and for all other purposes.
No charge shall be made upon any transfer or
exchange of any of the 2019 Bonds other than for any tax
or taxes or other governmental charge required to be paid
by the Company.
The Company shall not be required to make transfers
or exchanges of any of the 2019 Bonds for a period of ten
(10) days next preceding any interest payment date of
said bonds.
The 2019 Bonds are subject to redemption prior to
the maturity thereof, as a whole at any time or in part
from time to time, at the option of the Company, at the
principal amount of the 2019 Bonds to be redeemed and
accrued interest to the date of redemption, together with
a premium equal to a percentage of the principal amount
thereof set forth below under the heading "Redemption
Premium" if redeemed otherwise than by the application of
monies deposited with the Trustee representing the
proceeds of mortgaged and pledged property taken by the
exercise of the power of eminent domain or otherwise as
provided in paragraph B of Section 69 of the Mortgage,
provided, however, that prior to June 1, 1994, none of
the 2019 Bonds may be redeemed, directly or indirectly,
from the proceeds of or in anticipation of any refunding
operation involving the incurring of debt which has an
interest cost to the Company, computed in accordance with
generally accepted financial practice, of less than 9.625
per centum per annum:
If Redeemed If Redeemed
During the During the
Twelve Twelve
Months' Months'
Period Ending Redemption Period Ending Redemption
With the Premium With the Premium
Thirty-First Thirty-First
Day of May of Day of May of
the Year the Year
Stated Stated
1990 9.625% 2000 4.813%
1991 9.144% 2001 4.331%
1992 8.663% 2002 3.850%
1993 8.181% 2003 3.369%
1994 7.700% 2004 2.888%
1995 7.219% 2005 2.406%
1996 6.738% 2006 1.925%
1997 6.256% 2007 1.444%
1998 5.775% 2008 0.963%
1999 5.294% 2009 0.481%
and without premium if redeemed after May 31, 2009.
The 2016 Bonds are subject to redemption prior to
the maturity thereof out of monies deposited with the
Trustee representing the proceeds of mortgaged and
pledged property taken by the exercise of the power of
eminent domain or otherwise as provided in paragraph B of
Section 69 of the Mortgage, at the principal amount of
the 2019 Bonds so to be redeemed and accrued interest to
the date of redemption.
No recourse shall be had for the payment of the
principal of or interest on this bond against any
incorporator or any past, present or future subscriber to
the capital stock, stockholder, officer or director of
the Company or of any predecessor or successor
corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under
any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and
released by the terms of the Mortgage.
SECTION 4. Until the 2019 Bonds in definitive form
are ready for delivery, the Company may execute, and upon
its request in writing the Trustee shall authenticate and
deliver, in lieu thereof, fully registered 2019 Bonds in
temporary form, as provided in Section 15 of the Original
Mortgage. Such bonds may, in lieu of the statement of
the specific redemption prices required to be set forth
in such bonds in definitive form, include a reference to
this Thirty-Second Supplemental Indenture for a statement
of such redemption prices.
SECTION 5. The covenant of the Company to make
annual payments to the Trustee for a Maintenance and
Improvement Fund as contained in Section 41 of the
Original Mortgage and in the first twenty-four
Supplemental Indentures to the Original Mortgage creating
the several series of First Mortgage Bonds presently
outstanding under such Supplemental Indentures shall not
apply to, or be for the benefit of, the 2019 Bonds, and
the Company reserves the right, without any consent of,
or other action by, the holders of the 2019 Bonds, to
amend, modify or delete the provisions of the Mortgage
relating to such Maintenance and Improvement Fund, and by
acceptance of the 2019 Bonds, the holders thereof waive
any right or privilege so to consent or take any other
action with respect thereto. Notwithstanding the
foregoing, and irrespective of its right so to do, the
Company covenants not to apply any cash in the
Maintenance and Improvement Fund toward the redemption of
the 2019 Bonds prior to June 1, 1994.
SECTION 6. The Company covenants that, so long as
any of the 2019 Bonds shall remain outstanding, it will
comply with all of the provisions of Section 47 of the
Original Mortgage, including the provisions with respect
to limitations on dividends and distributions and the
purchase and redemption of stock.
SECTION 7. In the event the Company elects to
redeem any of the 2019 Bonds prior to June 1, 1994 the
Company shall, prior thereto, furnish to the Trustee a
Treasurer's Certificate stating that such redemption is
not being made, directly or indirectly, from the proceeds
of or in anticipation of any refunding operation
involving the incurring of debt which has an interest
cost to the Company, computed in accordance with
generally accepted financial practice, of less than 9.625
per centum per annum and that said redemption operation
is in full compliance with the terms and conditions of
Section 2 of this Thirty-Second Supplemental Indenture.
SECTION 8. The Trustee hereby accepts the trusts
herein declared, provided and created and agrees to
perform the same upon the terms and conditions herein and
in the Mortgage set forth and upon the following terms and
conditions:
The recitals contained herein and in the bonds shall
be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the
validity or adequacy of the security afforded hereby, or
as to the validity of this Thirty-Second Supplemental
Indenture or of the bonds issued hereunder.
SECTION 9. Whenever in this Thirty-Second
Supplemental Indenture either of the parties hereto is
named or referred to, this shall, subject to the
provisions of Article XVII of the Original Mortgage, be
deemed to include the successors or assigns of such
party, and all the covenants and agreements in this
Thirty-Second Supplemental Indenture contained by or on
behalf of the Company, or by or on behalf of the Trustee,
shall, subject as aforesaid, bind and inure to the
benefit of the respective successors and assigns of such
parties, whether so expressed or not.
SECTION 10. Nothing in this Thirty-Second
Supplemental Indenture, expressed or implied, is intended
or shall be construed to confer upon, or to give to, any
person, co-partnership or corporation, other than the
parties hereto and the holders of the bonds and coupons
outstanding under the Mortgage, any right, remedy, or
claim under or by reason of this Thirty-Second
Supplemental Indenture or any covenant, condition or
stipulation hereof; and all the covenants, conditions,
stipulations, promises and agreements in this Thirty-
Second Supplemental Indenture contained by or on behalf
of the Company shall be for the sole and exclusive
benefit of the parties hereto and of the holders of the
bonds and of the coupons outstanding under the Mortgage.
SECTION 11. The Company covenants that all of the
terms, provisions and conditions of the Mortgage shall be
applicable to the 2019 Bonds issued hereunder, except as
herein otherwise provided and except insofar as the same
may be inconsistent with the provisions of this Thirty-
Second Supplemental Indenture.
SECTION 12. This Thirty-Second Supplemental
Indenture is dated as of June 1, 1989, although executed
and delivered on the date of the acknowledgement hereof
by the Trustee; and shall be simultaneously executed and
delivered in several counterparts, and all such
counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, INDIANAPOLIS POWER & LIGHT
COMPANY, party of the first part, has caused its
corporate name to be hereunder affixed and this
instrument to be signed and acknowledged by its President
or a Vice-President, and its corporate seal to be hereto
affixed and attested by its Secretary or an Assistant
Secretary, for and in its behalf, and AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO, party of the second
part, as Trustee, has caused its corporate name to be
hereunto affixed and this instrument to be signed and
acknowledged by one of its Vice Presidents, and its
corporate seal to be hereto affixed and attested by one
of its Assistant Secretaries, all as of the day, month
and year first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Marcus E. Woods
(SEAL) Marcus E. Woods, Vice-President
Attest:
/s/ Arnold A. Gordus
Arnold A. Gordus, Assistant Secretary
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
By /s/ Ronald B. Bremen
(SEAL) Ronald B. Bremen, Vice-President
Attest:
/s/ Robert M. Selangowski
Robert M. Selangowski, Assistant Secretary
STATE OF INDIANA )
: SS.:
COUNTY OF MARION )
On this 31st day of May, in the year l989, before
me, a Notary Public in and for the County and State
aforesaid, personally came MARCUS E. WOODS, Vice-
President, and ARNOLD A. GORDUS, Assistant Secretary, of
Indianapolis Power & Light Company, one of the
corporations described in and which executed the
foregoing instrument, to me personally known and known to
me personally to be such Vice-President, and Assistant
Secretary, respectively. Said MARCUS E. WOODS, and
ARNOLD A. GORDUS being by me severally duly sworn did
depose and say that the said MARCUS E. WOODS resides in
Hendricks County, Indiana and the said ARNOLD A. GORDUS
resides in Marion County, Indiana; that said MARCUS E.
WOODS is Vice-President and said ARNOLD A. GORDUS is
Assistant Secretary of said Indianapolis Power & Light
Company; that each of them knows the corporate seal of
said corporation; that the seal affixed to said
instrument and bearing the name of said corporation is
such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation; and that each
of them signed his name thereto by like order; and each of
them acknowledged the execution of said instrument on
behalf of said corporation to be his free and voluntary
act and deed and the free and voluntary act and deed of
said corporation, for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal this 31st day of May, 1989.
/s/ Gloria Kay Bryant
Gloria Kay Bryant, Notary Public
My Commission Expires:
June 11, 1991
My County of Residence is:
Marion (Notarial Seal)
STATE OF ILLINOIS )
: SS.:
COUNTY OF COOK )
On this 31st day of May, in the year 1989, before
me, a Notary Public in and for the County and State
aforesaid, personally came RONALD B. BREMEN, Vice-
President, and ROBERT M. SELANGOWSKI, Assistant
Secretary, of American National Bank and Trust Company of
Chicago, one of the corporations described in and which
executed the foregoing instrument, to me personally known
and known to me personally to be such Vice-President and
Assistant Secretary, respectively. Said RONALD B.
BREMEN, and ROBERT M. SELANGOWSKI, being by me severally
sworn did depose and say that the said RONALD B. BREMEN,
resides in Glencoe, Illinois, and that the said ROBERT M.
SELANGOWSKI resides in Lansing, Illinois; that said
RONALD B. BREMEN is Vice-President and said ROBERT M.
SELANGOWSKI is Assistant Secretary of said American
National Bank and Trust Company of Chicago; that each of
them knows the corporate seal of said corporation; that
the seal affixed to said instrument and bearing the name
of said corporation is such corporate seal; that it was
so affixed by authority of the Board of Directors of said
corporation; that each of them signed his name thereto by
like authority; and each of them acknowledged the
execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and
the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal this 31st day of May, 1989.
/s/ Mary T. Denham
Mary T. Denham, Notary Public
(NOTARIAL SEAL)
My Commission Expires:
March 11, 1990
My County of Residence is:
Cook
This instrument was prepared by
MARCUS E. WOODS,
Attorney at Law
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
TRUSTEE
---------------
THIRTY-THIRD SUPPLEMENTAL INDENTURE
---------------
DATED AS OF AUGUST 1, 1989
ESTABLISHING FIRST MORTGAGE BONDS,
7.45% SERIES, DUE 2019
TABLE OF CONTENTS*
of
THIRTY-THIRD SUPPLEMENTAL INDENTURE
of
INDIANAPOLIS POWER & LIGHT COMPANY
PAGE
----
Parties.................................................... 1
Recitals................................................... 1
Section 1 Granting clauses............................... 3
Part I Electric Distributing Systems........... 4
Part II Steam and Hot Water Distributing
Systems................................ 4
Part III Indeterminate Permits and Franchises.. 5
Part IV Other Property......................... 5
General and after-acquired title............... 6
Section 2 Designation of thirty-second series of bonds
and kind and denominations thereof........... 6
Designation of Company office as place of
payment or, if not maintained, designation
of American National Bank and Trust Company
of Chicago as paying agent.................... 6
Purpose of bonds................................ 7
Redemption of bonds............................. 7
Exchange of bonds............................... 12
Transfer of bonds............................... 12
Series limited to $23,500,000................... 13
Section 3 Form of fully registered bond................... 14
Form of Trustee's certificate on bonds.......... 16
Section 4 Temporary bonds................................. 19
Section 5 Payment of principal and interest: credits...... 20
_________________________
*Table of Contents is not part of the Thirty-Third
Supplemental Indenture and should not be considered such.
It is included herein only for purposes of convenient
reference.
PAGE
----
Section 6 Annual Payments for Maintenance and Improvement
Fund.......................................... 20
Section 7 Compliance with Section 47 of Original Mortgage
with respect to dividend restrictions......... 21
Section 8 Acceptance of trusts by Trustee and conditions
of acceptance................................. 21
Section 9 Successors and assigns.......................... 21
Section 10 Limitation of rights hereunder.................. 21
Section 11 Compliance with terms, provisions and
conditions of Mortgage........................ 22
Section 12 Execution in counterparts....................... 22
Testimonium................................................. 23
Signatures and Seals........................................ 24
Acknowledgements............................................ 25
ii
THIS THIRTY-THIRD SUPPLEMENTAL INDENTURE, dated as of
August 1, 1989, between INDIANAPOLIS POWER & LIGHT
COMPANY, a corporation of the State of Indiana,
hereinafter sometimes called the "Company," party of the
first part, and AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, a national banking association, as Trustee,
hereinafter sometimes called the "Trustee," party of the
second part; witnesseth that:
WHEREAS, the Company by a Mortgage and Deed of Trust
(hereinafter sometimes called the "Original Mortgage"
when referred to as existing prior to any supplement
thereto or modification thereof, and the "Mortgage" when
referred to as now or heretofore supplemented and
modified) dated as of May 1, 1940, made to said American
National Bank and Trust Company of Chicago, as Trustee,
to secure the payment of the bonds issued from time to
time under the Mortgage for the purposes of and subject
to the limitations specified in the Mortgage, and to
secure the performance of the covenants therein
contained, conveyed to the Trustee thereunder upon
certain trusts, terms and conditions, and with and
subject to certain provisos and covenants therein
contained, all and singular the property, rights and
franchises which the Company then owned or should
thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any
indenture supplemental thereto, to which Mortgage
reference is hereby made for greater certainty; and
WHEREAS, the Original Mortgage has been supplemented and
modified by supplemental indentures dated as of May 1,
1942, as of February 1, 1948, as of April 1, 1949, as of
October 1, 1949, as of February 1, 1951, as of March 1,
1953, as of June 1, 1956, as of March 1, 1958, as of
October 1, 1960, as of August 1, 1964, as of April 1,
1966, as of May 1, 1967, as of May 1, 1968, as of October
1, 1970, as of March 1, 1972, as of March 15, 1973, as of
February 15, 1974, as of August 15, 1974, as of September
15, 1975, as of June 1, 1976, as of July 1, 1976, as of
August 1, 1977, as of September 1, 1978, as of August 1,
1981, as of November 1, 1983, as of November 1, 1984, as
of December 1, 1984, as of September 1, 1985, as of
October 1, 1986, as of June 1, 1989; and
WHEREAS, Section 8 of the Original Mortgage provides,
among other things, that the form of each series of bonds
(other than the initial issue of bonds) issued thereunder
shall be established by an indenture supplemental thereto
authorized by resolution of the Board of Directors of the
Company, and that the form of each series, as established
by the Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof, and
may also contain such other provisions as the Board of
Directors may, in its discretion, cause to be inserted
therein expressing or referring to the terms and
conditions upon which such bonds are to be issued and
secured under the Original Mortgage or any indenture
supplemental thereto or in modification thereof; and
WHEREAS, the Company has entered into a loan agreement
(hereinafter sometimes called the "Loan Agreement"),
dated as of August 1, 1989, with the Indiana Employment
Development Commission (the "Commission"), in order to
obtain funds for the acquisition, construction,
installation and equipping by the Company of certain
pollution control facilities, sewage facilities, solid
waste disposal facilities, and local district heating or
cooling facilities (the "Project"), and pursuant to the
Loan Agreement the Company has agreed to issue its bonds
under the Mortgage and this Thirty-Third Supplemental
Indenture in order to evidence and secure its
indebtedness under the Loan Agreement; and
WHEREAS, the Company now desires to provide for the
establishment, execution, authentication and delivery
under the Mortgage of bonds of a series to be known as
its "First Mortgage Bonds, 7.45% Series, due 2019" (the
bonds of said series being hereinafter sometimes referred
to as the "2019 PC Bond"), limited to the aggregate
principal amount of Twenty-Three Million Five Hundred
Thousand Dollars ($23,500,000); and
WHEREAS, all things necessary to make the 2019 PC Bond
hereinafter described, when duly executed by the Company
and authenticated and delivered by the Trustee, valid,
binding and legal obligations of the Company, and to make
this Thirty-Third Supplemental Indenture a valid and
binding agreement supplemental to the Original Mortgage,
have been done and performed; and
WHEREAS, the execution and delivery by the Company of
this Thirty-Third Supplemental Indenture, and the terms
of the 2019 PC Bond, have been duly authorized by the
Board of Directors of the Company by appropriate
resolutions of said Board; and
WHEREAS, it is provided in and by the Original Mortgage
that the Company will execute and deliver such further
instruments and do such further acts as may be necessary
or proper to carry out more effectually the purposes of
the Mortgage, and to make subject to the lien thereof any
property thereafter acquired and intended to be subject
to the lien thereof; and
WHEREAS, the Company has, since the date of execution and
delivery of the Original Mortgage, purchased and acquired
property and desires by this Thirty-Third Supplemental
Indenture specifically to convey to the Trustee such
property for the better protection and security of the
bonds issued and to be issued under the Original
Mortgage, or any indenture supplemental thereto;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the acceptance or
purchase of the 2019 PC Bond by the registered owners
thereof, and of the sum of one dollar, lawful money of
the United States of America, to the Company duly paid by
the Trustee at or before the execution and delivery of
this Thirty-Third Supplemental Indenture, the receipt
whereof is hereby acknowledged, the Company and the
Trustee, respectively, have entered into, executed and
delivered this Thirty-Third Supplemental Indenture, for
the uses and purposes hereinafter expressed, that is to
say:
Section 1. The Company has granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, and by these presents
does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm
(subject, however, to permitted encumbrances as defined
in the Original Mortgage), unto said American National
Bank and Trust Company of Chicago, as Trustee, as herein
provided, and its successors in the trusts declared in
the Original Mortgage and herein, all of the property,
real, personal and mixed, tangible and intangible, of
every kind, character and description which the Company
has acquired since the execution and delivery of the
Original Mortgage and now owns (except property, rights
and assets of a character similar to that excluded from
the lien and operation of the Mortgage by the Granting
Clauses of the Original Mortgage, which property, rights
and assets are excluded from the lien and operation of
the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality
of the foregoing, the following described property
situated within the State of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired
by it after May 1, 1940, the date of the Original
Mortgage, and located in the Counties of Bartholomew,
Boone, Daviess, Greene, Hamilton, Hancock, Hendricks,
Johnson, Knox, Madison, Marion, Monroe, Morgan, Owen,
Pike, Putnam, Shelby and Sullivan, State of Indiana; and
any additions to or extensions of any such systems,
together with the buildings, erections, structures,
transmission lines, power stations, sub-stations,
engines, boilers, condensers, pumps, turbines, machinery,
tools, conduits, manholes, insulators, dynamos, motors,
lamps, cables, wires, poles, towers, crossarms, piers,
abutments, switchboard equipment, meters, appliances,
instruments, apparatus, appurtenances, maps, records,
ledgers, contracts, facilities and other property or
equipment used or provided for use in connection with the
construction, maintenance, repair and operation thereof;
together also with all of the rights, privileges, rights-
of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits and easements of the
Company in respect of the construction, maintenance,
repair and operation of said systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired
by the Company after May 1, 1940, the date of the
Original Mortgage, and located in the City of
Indianapolis, Marion County, Indiana, and any additions
to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters,
engines, tanks, pipe lines, mains, connections, service
pipes, meters, tools, instruments, appliances, apparatus,
facilities, machinery and other property and equipment
used or provided for use in the construction,
maintenance, repair and operation thereof; and together
also with all of the rights, privileges, rights-of-way,
franchises, licenses, grants, liberties, immunities,
ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and
operation of said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances,
licenses, and other authorizations by or from any state,
county, municipality, or other governmental authority,
acquired by the Company after May 1, 1940, the date of
the Original Mortgage, including particularly, but not
limited to, any indeterminate permits under the Public
Service Commission Act of the State of Indiana, and all
Acts amendatory thereof and supplemental thereto, and all
right, title and interest therein now owned by the
Company, and all renewals, extensions and modifications
of said indeterminate permits, franchises, ordinances,
licenses, and other authorizations, and of the
indeterminate permits, franchises, ordinances, licenses,
and other authorizations referred to in Part VII of the
Granting Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed
(except any in the Mortgage expressly excepted), now
owned by the Company and wheresoever situated, including
(without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the
foregoing or of any general description contained in the
Mortgage) all lands, flowage rights, water rights,
flumes, raceways, dams, rights-of-way and roads; all
plants for the generation of electricity by water, steam
and/or other power, power houses, telephone systems,
water systems, steam heat and power plants, hot water
plants, sub-stations, transmission lines, distribution
systems, bridges, culverts and tracks; all offices,
buildings and structures and the equipment thereof; all
machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors;
all appliances whether electrical, gas or mechanical,
conduits, cables and lines; all pipes whether for water,
steam heat and power, or other purposes; all mains and
pipes, service pipes, fittings, valves and connections,
poles, wires, tools, implements, apparatus, furniture and
chattels; all municipal franchises, indeterminate
permits, and other permits; all lines for the
transportation, transmission and/or distribution of
electric current, steam heat and power or water for any
purpose, including towers, poles, wires, cables, pipes,
conduits and all apparatus for use in connection
therewith; all real estate, lands, leases, leaseholds;
all contracts, whether heat, light, power, water or
street lighting contracts; all easements, servitudes,
licenses, permits, rights, powers, franchises,
privileges, rights-of-way and other rights in or relating
to real estate or the occupancy of the same and (except
as hereinafter or in the Mortgage expressly excepted) all
the right, title and interest of the Company in and to
all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described or referred to;
Together with all and singular the tenements,
hereditaments and appurtenances belonging or in anywise
appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 64
of the Original Mortgage), the tolls, rents, revenues,
issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the
aforesaid property, indeterminate permits, franchises,
ordinances, licenses and other authorizations and every
part and parcel thereof.
Section 2. There shall be and is hereby established a
series of bonds, limited in aggregate principal amount to
Twenty-Three Million Five Hundred Thousand Dollars
($23,500,000) to be issued under and secured by the
Mortgage, to be designated "7.45% Series, due 2019", each
of which shall also bear the descriptive title "First
Mortgage Bonds"; said bonds shall mature on August 1,
2019, and shall be issued only as fully registered bonds
without coupons in the denomination of five thousand
dollars and any larger denomination which is a whole
multiple of five thousand dollars; they shall bear
interest from the beginning of the current interest
period during which each bond is dated, at the rate per
annum designated in the title thereof, payable semi-
annually, on February 1 and August 1 of each year; and
the principal of, premium, if any, and interest on each
said bond shall be payable in lawful money of the United
States of America, except as provided below, at the
office of the Company in the City of Indianapolis,
Indiana, or, if no such office is maintained, at American
National Bank and Trust Company of Chicago, which is
hereby designated and appointed the office and agency of
the Company in the City of Chicago, Illinois, for the
payment of the principal of, premium, if any, and
interest on the 2019 PC Bond, if necessary, and for the
registration, transfer and exchange of such bond as
hereinafter provided; all reference herein to the office
or agency of the Company in the City of Chicago,
Illinois, for the payment of the principal of, premium,
if any, and interest on the 2019 PC Bond, or the
registration, transfer or exchange thereof, being to
American National Bank and Trust Company of Chicago. In
the event of the resignation or inability to act of
American National Bank and Trust Company of Chicago, then
a successor agent for all such purposes in the City of
Chicago, Illinois, shall be appointed by the Board of
Directors of the Company.
The 2019 PC Bond shall be dated as of the date of
authentication thereof, except as otherwise provided in
Section 10 of the Original Mortgage.
The 2019 PC Bond will be issued to evidence and secure a
loan to the Company by the Commission pursuant to the
Loan Agreement of certain funds to be acquired by the
Commission through the issuance of Indiana Employment
Development Commission, Exempt Facilities Revenue Bonds,
Series 1989 (Indianapolis Power & Light Company Project)
(the "Commission Bonds"), authenticated and delivered
under and pursuant to an Indenture of Trust (the
"Commission Indenture"), dated as of August 1, 1989, by
and between the Commission and Merchants National Bank &
Trust Company of Indianapolis, as Trustee (the
"Commission Trustee"). If the Commission Trustee is
requested by any registered holder of one million dollars
or more in aggregate principal amount of the Commission
Bonds to make interest payments on the Commission Bonds
by wire transfer in federal funds on the date when due,
the interest on the 2019 PC Bond shall be paid on or
before the date when due in sufficient time and form to
permit the Commission Trustee to comply with the payment
requirements for the Commission Bonds. Pursuant to the
Commission's pledge and assignment of the 2019 PC Bond
and the Loan Agreement, as set forth in the Commission
Indenture, the 2019 PC Bond shall be issued to the
Commission Trustee. Substantially all of the proceeds
of the Commission Bonds will be used for the Project.
Upon the notice and in the manner and with the effect
provided in this Section 2, the 2019 PC Bond shall be
redeemable prior to the maturity thereof under any one or
more of the following circumstances:
(a) In part, at the option of the Company, if any
Project component or the facilities serviced by the
Project component shall have been damaged or destroyed as
set forth in Section 5.1 of the Loan Agreement (i) to
such extent that it cannot be reasonably restored within
a period of six (6) months to the condition thereof
immediately preceding such damage or destruction, or (ii)
to such extent that the Company is thereby prevented from
carrying on its normal operations for a period of six (6)
months or more, or (iii) to such extent that the
restoration thereof would not be, taking into
consideration the Net Proceeds (as defined in the Loan
Agreement) or any insurance payable as a result of such
damage or destruction, economic in the reasonable opinion
of the Company.
(b) In part, at the option of the Company, if title to,
or the temporary use of, all or substantially all of the
Project component or the facilities serviced by the
Project component shall have been taken, under the
exercise of the power of eminent domain, or should any
governmental body or agency exercise any right which it
may have to purchase or designate a purchaser of the
same, or should such property be sold to any governmental
body or agency so that the result of such taking or
takings is that (i) the Company is thereby prevented from
carrying on its normal operation of either the Project
component or such facilities for a period of six (6)
months or more, (ii) the restoration required as a result
of the taking cannot be reasonably expected, in the
opinion of the Company, to be completed in a period of
six (6) months, or (iii) the restoration thereof, taking
into consideration the Net Proceeds (as defined in the
Loan Agreement) from such eminent domain award, would not
be economic in the reasonable opinion of the Company.
(c) In whole, at the option of the Company, if, as a
result of any changes in the Constitution of the State of
Indiana or the Constitution of the United States of
America or of legislative or administrative action
(whether state or federal) or by final decree, judgment
or order of any court or administrative body (whether
state or federal) entered after the contest thereof by
the Company in good faith, the Loan Agreement shall, in
the reasonable opinion of counsel for the Company, have
become void or unenforceable or impossible of performance
in accordance with the intent and purpose of the parties
as expressed in the Loan Agreement; or unreasonable
burdens or excessive liabilities shall, in the reasonable
opinion of the Company, have been imposed upon the
Commission or the Company, with respect to the Project or
operation thereof, including without limitation federal,
state or other ad valorem, property, income or other
taxes not being imposed on the date of the Loan Agreement
other than ad valorem taxes presently levied upon
privately owned property used for the same general
purpose as the Project.
(d) In part, at the option of the Company, if changes in
the economic availability of raw materials, operating
supplies or facilities necessary for the operation of any
Project component or the operation of the facilities
serviced by the Project component shall have occurred or
technological or other changes shall have occurred which
render said facilities uneconomic for use.
(e) In part, at the option of the Company, to the extent
of Net Proceeds (as defined in the Loan Agreement)
received from any condemnation award, taking or sale as
stated therein, if title to, or the temporary use of any
portion of the Project shall have been taken by the
exercise of the power of eminent domain, or should any
governmental body or agency exercise any right it may
have to purchase or designate a purchaser of the same, or
should such property be sold to any governmental body or
agency; provided the Company shall furnish to the
Commission and the Commission Trustee a certificate of an
Independent Engineer (as defined in the Loan Agreement)
selected by the Company stating (i) that the property
forming a part of the Project that was taken by such
condemnation, taking or sale is not essential to the
character or significance of the Project, or (ii) that
the Project has been restored to a condition
substantially equivalent to its condition as Pollution
Control Facilities, Sewage Facilities or Solid Waste
Disposal Facilities or Local District Heating or Cooling
Facilities (as defined in the Loan Agreement) prior to
the taking by such condemnation, taking or sale
proceedings, or (iii) that improvements have been
acquired which are suitable for the operation of the
Project as Pollution Control Facilities, Sewage
Facilities or Solid Waste Disposal Facilities or Local
District Heating or Cooling Facilities.
(f) In whole, at any time on or after August 1, 1999, or
in part on any interest payment date on or after August
1, 1999, at the option of the Company, at a price equal
to the principal amount of the 2019 PC Bond so to be
redeemed and accrued interest to the date of redemption,
together with a premium equal to a percentage of the
principal amount thereof set forth under the heading
"Redemption Premium" in the form of 2019 PC Bond hereinafter
recited, so long as the Company is not in default under the
Loan Agreement or the 2019 PC Bond.
(g) In the event all or substantially all of the
mortgaged and pledged property under the Mortgage, or all
or substantially all such property used in the business
of generating, manufacturing, transporting, transmitting,
distributing or supplying electricity, should be taken by
exercise of the power of eminent domain, or should any
governmental body or agency exercise any right which it
may have to purchase or designate a purchaser of the
same, or should such property be sold to any governmental
body or agency, the Company shall be obligated to redeem
the 2019 PC Bond outstanding as promptly as possible in
accordance with paragraph B of Section 69 of the Original
Mortgage.
(h) In the event that the Company is notified by the
Commission Trustee that (i) an event of default has
occurred and is continuing under Section 8.01 of the
Commission Indenture, and (ii) the Commission Trustee has
declared the principal of all Commission Bonds then
outstanding immediately due and payable pursuant to
Section 8.02 of the Commission Indenture, the Company
shall call for redemption on a redemption date selected
by it not later than thirty (30) days following the date
on which such notice is mailed, the 2019 PC Bond
outstanding, and shall on such redemption date redeem the
same; provided, however, that such requirement of
redemption shall be deemed waived, if prior to the date
fixed for such redemption of the 2019 PC Bond (x) such
event of default is waived or cured as set forth in
Section 8.02 of the Commission Indenture, or (y) there
shall have occurred any completed default (as defined in
the Mortgage) which affects any bond of any series
outstanding under the Mortgage and which completed
default has not been cured and made good prior to such
redemption date, it being the intent of this proviso
that, in lieu of such right to redemption, the holder of
the 2019 PC Bond shall be entitled only to such rights as
are available to the holders of bonds of any other
series outstanding under the Mortgage in the event of
such completed default; and in case of any subsequent
occurrence or continuance of the events described in (i)
and (ii) of this Section 2(h), the Company shall have the
same obligation (subject to the same proviso) to redeem
the 2019 PC Bond.
(i) In the event the Commission Trustee notifies the
Company and the Commission that the interest payable on
the Commission Bonds held by persons other than a
"substantial user" or a "related person" as those terms
are used in Section 147(a)(2) of the Internal Revenue
Code of 1986, as amended, has been determined by a court
of competent jurisdiction or a formal ruling of the
Internal Revenue Service to be no longer excludable from
gross income for federal income tax purposes by reason of
a breach by the Company of any covenant, agreement or
representation in the Loan Agreement, the Company shall
call the 2019 PC Bond then outstanding to be redeemed on
the next succeeding interest payment date which is not
less than ninety (90) days after the date of such notice;
provided, however, that such requirement of redemption
shall be deemed waived if, prior to the date fixed for
redemption of the 2019 PC Bond pursuant to this Section
2(i), there shall have occurred any completed default (as
defined in the Mortgage) which affects any bond of any
series outstanding under the Mortgage and which completed
default has not been cured and made good prior to such
redemption date, it being the intent of this proviso
that, in lieu of such right to redemption, the holder of
the 2019 PC Bond shall be entitled only to such rights as
are available to holders of bonds of any other series
outstanding under the Mortgage in the event of such
completed default; but when any such completed default
shall have been cured and made good, if interest on the
Commission Bonds shall still be taxable as described
above, the Company shall have the same obligation
(subject to the same proviso) to redeem the 2019 PC Bond
on the next succeeding interest payment date which is not
less than ninety (90) days after the curing and making
good of such completed default; provided further, that
the Company may call for redemption such portion of the
2019 PC Bond, which in the written opinion of an attorney
or firm of attorneys of nationally recognized standing on
the subject of municipal bonds, would allow the
Commission Trustee to redeem the Commission Bonds in
part, which redemption would have the result that the
interest payable on the Commission Bonds remaining
outstanding after such redemption in part would not be
subject to federal income taxation in the hands of
persons other than a "substantial user" or a "related
person" as those terms are used in Section 142(a)(2) of
the Internal Revenue Code of 1986, as amended.
In case of redemption of the 2019 PC Bond in whole for
the purpose of prepayment under the Loan Agreement
pursuant to subsection (c), (f), (g), (h) or (i) above,
the amounts payable upon redemption of the 2019 PC Bond
shall be a sum sufficient, together with other funds
deposited with the Commission Trustee and available for
such purpose, to pay the entire principal of, (and
premium, in the case of redemption pursuant to (f)
above), and interest on the 2019 PC Bond then outstanding
and to pay all reasonable and necessary fees and expenses
of the Commission Trustee accrued and to accrue through
final payment of the 2019 PC Bond.
In case of redemption in part pursuant to (a), (b), (d),
(e), (f) or (i) above, the amount payable by the Company
under this Thirty-Third Supplemental Indenture, the Loan
Agreement and the 2019 PC Bond shall be a sum sufficient,
together with other funds deposited with the Trustee and
available for such purpose, to pay the principal of (and
premium in the case of prepayment pursuant to (f) above)
and interest on the 2019 PC Bond so to be redeemed, which
sum together with other funds deposited with the
Commission Trustee and available for such purpose shall
be sufficient to pay the principal of, premium, if any,
and interest on the Commission Bonds and to pay all
reasonable and necessary fees and expenses of the
Commission Trustee accrued and to accrue through such
partial prepayment. In case of redemption in part
pursuant to (a), (b), or (d) above, the aggregate
principal amount of the 2019 PC Bond to be redeemed shall
be an amount equal to the amount of the proceeds of the
Commission Bonds expended on the Project component
affected by the event, rounded up to the nearest five
thousand dollar increment.
The 2019 PC Bond and the Commission Bonds shall be
redeemable at any time within one hundred eighty (180)
days following the event or events described as giving
rise to an option of the Company to redeem them in
subsections (a), (b), (c), (d) or (e) above.
To exercise any of the options granted to redeem the 2019
PC Bond in whole or in part or to comply with any
obligations to redeem the 2019 PC Bond in whole or in
part imposed in this Section 2, the Company shall give
written notice of the date of redemption to the
Commission Trustee, which date shall be not less than
thirty (30) days nor more than ninety (90) days from the
date the notice is mailed. No further notice, by
publication or otherwise, shall be required for
redemption of the 2019 PC Bond, and the requirements of
Section 59 of the Mortgage for notice by newspaper
publication shall not apply to the 2019 PC Bond.
At the option of the holder, the 2019 PC Bond, upon
surrender thereof at the office or agency of the Company
in Chicago, Illinois, together with a written instrument
of transfer in form approved by the Company duly executed
by the holder or by his duly authorized attorney, shall
be exchangeable for a fully registered bond in like
principal amount of the same series and in an authorized
denomination.
The 2019 PC Bond will be nontransferable except to the
Commission Trustee and successors thereto, if any, and to
the Company. To the extent that it is transferable, it
is transferable by the registered holder thereof, in
person or by attorney duly authorized in writing, on the
books of the Company at the office or agency of the
Company in the City of Chicago, Illinois, upon surrender
thereof for cancellation at said office and upon
presentation of a written instrument of transfer duly
executed. Thereupon, the Company shall issue in the name
of the transferee, and the Trustee shall authenticate and
deliver, a new registered 2019 PC Bond, in an authorized
denomination, of equal principal amount. Any such
transfer shall be subject to the terms and conditions
specified in the Mortgage and in this Thirty-Third
Supplemental Indenture.
Upon redemption of the 2019 PC Bond in part and surrender
thereof at the office or agency of the Company in
Chicago, Illinois, for exchange, the Trustee shall
authenticate and deliver a new registered 2019 PC Bond in
an authorized denomination and principal amount equal to
the reduced principal amount due on that series after
such partial redemption.
The Company shall not be required to transfer or exchange
the 2019 PC Bond for a period of ten (10) days next
preceding any interest payment date of said bond.
Except as set forth herein, no charge shall be made upon
any transfer or exchange of the 2019 PC Bond other than
for any tax or taxes or other governmental charge
required to be paid by the Company.
The 2019 PC Bond shall be limited to an aggregate
principal amount of Twenty-Three Million Five Hundred
Thousand ($23,500,000) and shall be issued under the
provisions of Article VI of the Original Mortgage.
Section 3. The 2019 PC Bond, and the Trustee's
Certificate to be endorsed thereon, shall be in the
following forms, respectively:
[Form of Face of 2019 PC Bond]
This First Mortgage Bond, 7.45% Series, due 2019
(hereinafter called the "2019 PC Bond") is not
transferable except to a successor trustee under the
Indenture of Trust, dated as of August 1, 19889, between
the Indiana Employment Development Commission and
Merchants National Bank & Trust Company of Indianapolis,
as Trustee, or to Indianapolis Power & Light Company.
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 7.45% Series, Due 2019
Due August 1, 2019
No. 1 $23,500,000
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the
State of Indiana (hereinafter called the Company), for
value received, hereby promises to pay to Merchants
National Bank & Trust Company of Indianapolis, as Trustee
under the Indenture of Trust between the Indiana
Employment Development Commission, and Merchants National
Bank & Trust Company of Indianapolis, as Trustee, dated
as of August 1, 1989, or registered assigns, on August 1,
2019, at the office of the Company, in the City of
Indianapolis, State of Indiana, or if no such office is
maintained at the time by the Company, then at the office
or agency of the Company for such purpose in the City of
Chicago, State of Illinois, Twenty-Three Million Five
Hundred Thousand Dollars ($23,500,000) in lawful money of
the United States of America, and to pay to the
registered owner thereof interest thereon from the first
day of February or the first day of August next preceding
the date of this 2019 PC Bond, at the rate of seven and
forty-five hundreths per centum (7.45%) per annum in like
lawful money at said office or agency, on February 1 and
August 1 in each year, until the Company's obligation
with respect to the payment of such principal shall have
been discharged. The interest payable hereunder on
February 1 or August 1 will be paid to the registered
owner of this 2019 PC Bond at or before the close of
business on such dates, or if such date shall be a
Saturday, Sunday, holiday or a day on which banking
institutions in the City of Indianapolis or any paying
agents are authorized by law to close, on or before the
close of business on the next succeeding business day on
which such banking institutions are open for business.
If the Commission Trustee (as defined below) is requested
by any registered holder of one million dollars or more
in aggregate principal amount of the Commission Bonds (as
defined below) to make interest payments on the
Commission Bonds (as defined below) by wire transfer in
federal funds on the date when due, the interest on this
2019 PC Bond shall be paid on or before the date when due
in sufficient time and form to permit the Commission
Trustee (as defined below) to comply with the payment
requirements for the Commission Bonds (as defined below).
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS 2019
PC BOND SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH IN THIS PLACE.
No recourse shall be had for the payment of the principal
of or interest on this 2019 PC Bond against any
incorporator or any past, present or future subscriber to
the capital stock, stockholder, officer or director of
the Company or of any predecessor or successor
corporation, at such, either directly or through the
Company or any predecessor or successor corporation,
under any rule of law, statute, or constitution or by the
enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and
released by the terms of the Mortgage.
This 2019 PC Bond shall not become obligatory until
American National Bank and Trust Company of Chicago, the
Trustee under the Mortgage, or its successor thereunder,
shall have signed the form of certificate endorsed
hereon.
IN WITNESS WHEREOF, Indianapolis Power & Light Company
has caused this Bond to be signed in its name by its
President or one of its Vice-Presidents, by his signature
or a facsimile thereof, and a facsimile of its corporate
seal to be imprinted hereon, attested by its Secretary or
one of its Assistant Secretaries, by his signature or a
facsimile thereof.
INDIANAPOLIS POWER & LIGHT COMPANY
Dated: By_______________________________________
President
Attest:
By_____________________________
Secretary
[Form of Trustee's Certificate on 2019 PC Bond]
Trustee's Certificate
This 2019 PC Bond is one of the bonds, of the series
herein designated, provided for in the within-mentioned
Mortgage and Thirty-Third Supplemental Indenture.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
Trustee
By______________________________________
Authorized Signature
[Form of Reverse Side of 2019 PC Bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 7.45% Series, due 2019
Due August 1, 2019
This 2019 PC Bond is one of an issue of bonds of the
Company, issuable in series, and is one of a series known
as its First Mortgage Bonds, 7.45% Series, due 2019
(hereinafter, called the "2019 PC Bond") limited in
aggregate principal amount to Twenty-Three Million Five
Hundred Thousand Dollars ($23,500,000) and established by
a Thirty-Third Supplemental Indenture, dated as of August
1, 1989, all bonds of all series issued and to be issued
under and equally secured (except insofar as any sinking
or other fund, established in accordance with the
provisions of the Mortgage hereinafter mentioned, may
afford additional security for the bonds of any
particular series) by a Mortgage and Deed of Trust, dated
as of May 1, 1940, executed by the Company to American
National Bank and Trust Company of Chicago, as the
Trustee (which Mortgage and Deed of Trust as supplemented
and modified by all supplemental indentures thereto is
hereinafter referred to as the "Mortgage"), to which
Mortgage reference is made for a description of the
property mortgaged and pledged, the nature and extent of
the security, the rights of the bearers or registered
owners of the bonds in respect of such security, the
duties and immunities of the Trustee and terms and
conditions upon which the bonds are secured.
This 2019 PC Bond evidences and secures a loan made by
the Indiana Employment Development Commission (the
"Commission"), to the Company, pursuant to a Loan
Agreement, dated as of August 1, 1989, between the
Commission and the Company (the "Loan Agreement"). In
order to obtain funds for such loan, the Commission
contemporaneously with the issue of this 2019 PC Bond,
will issue Twenty-Three Million Five Hundred Thousand
Dollars ($23,500,000) principal amount of its Exempt
Facilities Revenue Bonds, Series 1989 (Indianapolis Power
& Light Company Project)(the "Commission Bonds") under
and pursuant to an Indenture of Trust, dated as of August
1, 1989 (the "Commission Indenture") between the
Commission and Merchants National Bank & Trust Company of
Indianapolis, as Trustee (the "Commission Trustee"). The
Commission Bonds are payable from payments made by the
Company of principal, of premium, if any, and interest on
this 2019 PC Bond and from moneys in the Bond Fund
created under the Commission Indenture. The obligation
of the Company to pay the principal of, premium, if any,
and interest on this 2019 PC Bond shall be discharged to
the extent that any moneys in said Bond Fund are
available for payments on the Commission Bonds and are
directed by the Company to be applied thereto, all as
provided in the Thirty-Third Supplemental Indenture.
This 2019 PC Bond is not subject to redemption prior to
August 1, 1999, except as provided in Section 2 of the
Thirty-Third Supplemental Indenture, to which reference
is made for full description of redemption provisions.
This 2019 PC Bond is subject to redemption in whole at
any time on or after August 1, 1999, or in part on any
interest payment date on or after August 1, 1999, at the
option of the Company, upon at least thirty (30) days
prior notice, all as provided in the Thirty-Third
Supplemental Indenture, at a price equal to the principal
amount of the 2019 PC Bond so to be redeemed and accrued
interest to the date of redemption, together with a
premium equal to a percentage of the principal amount
thereof set forth below under the heading "Redemption
Premium":
If Redeemed During
The Twelve Months
Ending With the
Thirty-first Day
Of July of the Redemption
Year Stated Premium
2000 2.0%
2001 1.0%
and without premium if redeemed after July 31, 2001.
With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or of the holders of
the bonds and/or coupons and/or the terms and provisions
of the Mortgage and/or any instruments supplemental
thereto may be modified or altered by affirmative vote of
the holders of at least sixty-six and two-thirds per centum
(66 2/3%) in principal amount of the bonds affected by such
modification or alteration then outstanding under the Mortgage
(excluding bonds disqualified from voting by reason of the Company's
interest therein as provided in the Mortgage); provided
that no such modification or alteration shall permit the
extension of the maturity of the principal of this 2019
PC Bond or the reduction in the rate of interest hereon
or any other modification in the terms of payment of such
principal or interest without the consent of the holder
hereof. The principal hereof may be declared or may
become due and payable prior to the stated date of
maturity hereof, on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence
of a completed default as in the Mortgage provided.
No reference herein to the Mortgage, and no provision of
this 2019 PC Bond or of the Mortgage, shall alter or
impair the obligation of the Company, which is absolute
and unconditional, to pay, subject to the provisions of
the Thirty-Third Supplemental Indenture, the principal
of, and premium, if any, and interest on this 2019 PC
Bond at the place, at the respective times and at the
rate and in the manner herein prescribed.
This 2019 PC Bond is issuable only in fully registered
form without coupons in denominations of Five Thousand
Dollars and any larger denomination which is a whole
multiple of Five Thousand Dollars.
This 2019 PC Bond will be nontransferable except to the
Commission Trustee and successors thereto, if any, and to
the Company. To the extent that it is transferable, it
is transferable by the registered holder thereof, in
person or by attorney duly authorized in writing, on the
books of the Company at the office or agency of the
Company in the City of Chicago, Illinois, upon surrender
thereof for cancellation at said office and upon
presentation of a written instrument of transfer duly
executed. Thereupon, the Company shall issue in the name
of the transferee, and the Trustee shall authenticate and
deliver, a new registered 2019 PC Bond, in an authorized
denomination, of equal principal amount. Any such
transfer shall be subject to the terms and conditions
specified in the Mortgage and the Thirty-Third
Supplemental Indenture.
Upon redemption of this 2019 PC Bond in part and
surrender thereof at the office or agency of the Company
in Chicago, Illinois, for exchange, the Trsutee shall
authenticate and deliver a new registered 2019 PC Bond in
an authorized denomination and principal amount equal to
the reduced principal amount due on that series after
such partial redemption.
[End of 2019 PC Bond Form]
Section 4. Until the 2019 PC Bond in definitive form is
ready for delivery, the Company may execute, and upon its
request in writing the Trustee shall authenticate and
deliver, in lieu thereof, a fully registered 2019 PC Bond
in temporary form, as provided in Section 15 of the
Original Mortgage. Such bond may, in lieu of the
statement of the specific redemption prices required to
be set forth in such bond in definitive form, include a
reference to this Thirty-Third Supplemental Indenture for
a statement of such redemption prices.
Section 5. The Company covenants and agrees that it will
duly and punctually pay to the holder of the 2019 PC Bond
the principal thereof, premium, if any, and interest on
said bond at the dates and place and in the manner
mentioned therein; provided; however, that:
(a) The obligation of the Company to pay the principal
of, and premium, if any, and interest on the 2019 PC Bond
shall be discharged to the extent that any moneys in the
Bond Fund created under and pursuant to the Commission
Indenture are available for payment of the principal of,
or premium, if any, or interest on the Commission Bonds
and are directed by the Company to be applied to the
payment thereof in the manner provided in the Commission
Indenture on or prior to the dates on which the Company is
required to pay the principal of, or premium, if any, or
interest on the 2019 PC Bond.
(b) Except as otherwise provided in this Section 5, the
principal amount of any Commission Bond acquired by the
Company and delivered to the Commission Trustee, or
acquired by the Commission Trustee and cancelled, shall
be credited against the obligation of the Company to pay
the principal of the 2019 PC Bond.
As the principal of, premium, if any, and interest on the
2019 PC Bond is paid or deemed paid in full, and upon its
receipt by the Company, such bond shall be delivered to
the Trustee for cancellation. The Company shall promptly
inform the Trustee of all payments made and credits
availed of with respect to its obligations on the 2019 PC
Bond. The Trustee shall not be required to recognize any
payment made or credit availed of with respect to any
2019 PC Bond unless it has received (a) the bond for
cancellation by it, or (b) a certificate signed by a duly
authorized officer of the Commission Trustee specifying
the amount of such payment or credit and the principal
amount of the 2019 PC Bond with respect to which the
payment or credit was applied. In the absence of receipt
by the Trustee of any 2019 PC Bond, any such certificate
shall be controlling and conclusive.
Section 6. The covenant of the Company to make annual
payments to the Trustee for a Maintenance and Improvement
Fund as contained in Section 41 of the Original Mortgage
and in the first twenty-four Supplemental Indentures to
the Original Mortgage creating the several series of
First Mortgage Bonds presently outstanding under such
Supplemental Indentures shall not apply to nor be for the
benefit of the 2019 PC Bond, and the Company reserves the
right, without any consent of, or other action by, the
holders of the 2019 PC Bond, to amend, modify or delete
the provisions of the Mortgage relating to such
Maintenance and Improvement Fund and by acceptance of the
2019 PC Bond the holder thereof waive any right or
privilege so to consent or take any other action with
respect thereto. Notwithstanding the foregoing, and
irrespective of its right so to do, the Company covenants
not to apply any cash in the Maintenance and Improvement
fund toward the redemption of the 2019 PC Bond prior to
August 1, 1999.
Section 7. The Company covenants that, so long as the
2019 PC Bond shall remain outstanding, it will comply
with all of the provisions of Section 47 of the Original
Mortgage, including the provisions with respect to
limitations on dividends and distributions and the
purchase and redemption of stock.
Section 8. The Trustee hereby accepts the trusts herein
declared, provided and created and agrees to perform the
same upon the terms and conditions herein and in the
Mortgage set forth and upon the following terms and
conditions:
The recitals contained herein and in the bonds shall be
taken as the statements of the Company and the Trustee
assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the
validity or adequacy of the security afforded hereby, or
as to the validity of this Thirty-Third Supplemental
Indenture or of the PC Bond issued hereunder.
Section 9. Whenever in this Thirty-Third Supplemental
Indenture either of the parties hereto is named or
referred to, this shall, subject to the provisions of
Article XVII of the Original Mortgage, be deemed to
include the successors or assigns of such party, and all
the covenants and agreements in this Thirty-Third
Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the benefit of
the respective successors and assigns of such parties,
whether so expressed or not.
Section 10. Nothing in this Thirty-Third Supplemental
Indenture, expressed or implied, is intended or shall be
construed to confer upon, or to give to, any person, co-
partnership or corporation, other than the parties hereto
and the holders of the bonds and coupons outstanding
under the Mortgage, any right, remedy, or claim under or
by reason of this Thirty-Third Supplemental Indenture or
any covenant, condition or stipulation hereof; and all
the covenants, conditions, stipulations, promises and
agreements in this Thirty-Third Supplemental Indenture
contained by or on behalf of the Company shall be for the
sole and exclusive benefit of the parties hereto and of
the holders of the bonds and of the coupons outstanding
under the Mortgage.
Section 11. The Company covenants that all of the terms,
provisions and conditions of the Mortgage shall be
applicable to the 2019 PC Bond issued hereunder, except
as herein otherwise provided and except insofar as the
same may be inconsistent with the provisions of this
Thirty-Third Supplemental Indenture.
Section 12. This Thirty-Third Supplemental Indenture is
dated as of August 1, 1989, although executed and
delivered on the date of the acknowledgment hereof by the
Trustee; and shall be simultaneously executed and
delivered in several counterparts, and all such
counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
In Witness Whereof, Indianapolis Power & Light Company,
party of the first part, has caused its corporate name to
be hereunto affixed in this instrument to be signed and
acknowledged by its President or a Vice-President, and
its corporate seal to be hereto affixed and attested by
its Secretary or an Assistant Secretary, for and in its
behalf, and American National Bank and Trust Company of
Chicago, party of the second part, as Trustee, has caused
its corporate name to be hereunto affixed and this
instrument to be signed and acknowledged by one of its
Vice-Presidents, and its corporate seal to be hereto
affixed and attested by one of its Assistant Secretaries,
all as of the day, month and year first above written.
Indianapolis Power & Light Company
By /s/ Marcus E. Woods
Marcus E. Woods,
Vice-President.
Attest:
/s/ Arnold A. Gordus,
Arnold A. Gordus, (SEAL)
Assistant Secretary
American National Bank and Trust
Company of Chicago,
By /s/ Ronald B. Bremen
Ronald B. Bremen,
Vice-President
Attest:
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary (SEAL)
State of Indiana )
) ss.:
County of Marion )
On this 26th day of July, in the year 1989, before me, a
Notary Public in and for the County and State aforesaid,
personally came Marcus E. Woods, Vice-President, and
Arnold A. Gordus, Assistant Secretary, of Indianapolis
Power & Light Company, one of the corporations described
in and which executed the foregoing instrument, to me
personally known and known to me personally to be such
Vice-President and Assistant Secretary, respectively.
Said Marcus E. Woods and Arnold A. Gordus being by me
severally duly sworn did depose and say that the said
Marcus E. Woods resides in Hendricks County, Indiana and
the said Arnold A. Gordus resides in Marion County,
Indiana; that said Marcus E. Woods is Vice-President and
said Arnold A. Gordus is Assistant Secretary of said
Indianapolis Power & Light Company; that each of them
knows the corporate seal of said corporation; that the
seal affixed to said instrument and bearing the name of
said corporation is such corporate seal; that it was so
affixed by order of the Board of Directors of said
corporation; and that each of them signed his name
thereto by like order; and each of them acknowledged the
execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and
the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 26th day of July, 1989.
/s/ Jeanne-Marie T. Bell
Jeanne-Marie T. Bell,
Notary Public
(Notarial Seal)
My Commission Expires:
January 19, 1993
My County of Residence is:
Marion
State of Illinois )
) ss.:
County of Cook )
On this 26th day of July in the year 1989, before me, a
Notary Public in and for the County and State aforesaid,
personally came Ronald B. Bremen, Vice-President, and
Robert M. Selangowski, Assistant Secretary, of American
National Bank and Trust Company of Chicago, one of the
corporations described in and which executed the
foregoing instrument, to me personally known and known to
me personally to be such Vice-President and Assistant
Secretary, respectively. Said Ronald B. Bremen, and
Robert M. Selangowski, being by me severally sworn did
depose and say that the said Ronald B. Bremen resides in
Glencoe, Illinois, and that the said Robert M.
Selangowski resides in Lansing, Illinois; that said
Ronald B. Bremen is Vice-President and said Robert M.
Selangowski is Assistant Secretary of said American
National Bank and Trust Company of Chicago; that each of
them knows the corporate seal of said corporation; that
the seal affixed to said instrument and bearing the name
of said corporation is such corporate seal; that it was
so affixed by authority of the Board of Directors of said
corporation; that each of them signed his name thereto by
like authority; and each of them acknowledged the
execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and
the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 26th day of July, 1989.
/s/ Mary T. Denham
Mary T. Denham
Notary Public.
(Notarial Seal)
My Commission Expires: March 11, 1990
My County of Residence is:
Cook
This instrument was prepared by
Marcus E. Woods,
Attorney at Law
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
TRUSTEE
---------------
THIRTY-FOURTH SUPPLEMENTAL INDENTURE
---------------
DATED AS OF OCTOBER 15, 1991
ESTABLISHING FIRST MORTGAGE BONDS,
8% SERIES, DUE 2006
TABLE OF CONTENTS*
of
THIRTY-FOURTH SUPPLEMENTAL INDENTURE
of
INDIANAPOLIS POWER & LIGHT COMPANY
PAGE
----
Parties.................................................. 1
Recitals................................................. 1
Section 1 Granting clauses.............................. 3
Part I Electric Distributing Systems....... 3
Part II Steam and Hot Water Distributing
Systems.......................... 4
Part III Indeterminate Permits and
Franchises....................... 4
Part IV Other Property..................... 5
General and after-acquired title.............. 6
Section 2 Designation of Thirty-Second series of bonds
and kind and denominations thereof.......... 6
Record date for payment of interest........... 6
Designation of American National Bank and Trust
Company of Chicago as paying agent.......... 7
Exchange of bonds............................. 7
Transfer of bonds............................. 8
Series limited to $58,800,000................. 8
Section 3 Form of fully registered bond................. 8
Form of Trustee's certificate on bonds........ 10
Section 4 Temporary bonds............................... 13
Section 5 Annual Payments for Maintenance and
Improvement Fund............................ 13
Section 6 Compliance with Section 47 of Original
Mortgage with respect to dividend
restrictions................................ 14
Section 7 Acceptance of trusts by Trustee and
conditions of acceptance.................... 14
Section 8 Successors and assigns........................ 14
Section 9 Limitation of rights hereunder................ 14
_________________________
*Table of Contents is not part of the Thirty-Fourth
Supplemental Indenture and should not be considered such.
It is included herein only for purposes of convenient
reference.
PAGE
----
Section 10 Compliance with terms, provisions and
conditions of Mortgage...................... 15
Section 11 Execution in counterparts..................... 15
Testimonium............................................... 16
Signatures and Seals...................................... 16
Acknowledgements.......................................... 17
ii
THIS THIRTY-FOURTH SUPPLEMENTAL INDENTURE, dated as of
October 15, 1991, between INDIANAPOLIS POWER & LIGHT
COMPANY, a corporation of the State of Indiana,
hereinafter sometimes called the "Company," party of the
first part, and AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, a national banking association, as Trustee,
hereinafter sometimes called the "Trustee," party of the
second part;
WHEREAS, the Company by a Mortgage and Deed of Trust
(hereinafter sometimes called the "Original Mortgage"
when referred to as existing prior to any supplement
thereto or modification thereof, and the "Mortgage" when
referred to as now or heretofore supplemented and
modified) dated as of May 1, 1940, made to said American
National Bank and Trust Company of Chicago, as Trustee,
to secure the payment of the bonds issued from time to
time under the Mortgage for the purposes of and subject
to the limitations specified in the Mortgage, and to
secure the performance of the covenants therein
contained, conveyed to the Trustee thereunder upon
certain trusts, terms and conditions, and with and
subject to certain provisos and covenants therein
contained, all and singular the property, rights and
franchises which the Company then owned or should
thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any
indenture supplemental thereto, to which Mortgage
reference is hereby made for greater certainty; and
WHEREAS, the Original Mortgage has been supplemented and
modified by supplemental indentures dated as of May 1,
1942, as of February 1, 1948, as of April 1, 1949, as of
October 1, 1949, as of February 1, 1951, as of March 1,
1953, as of June 1, 1956, as of March 1, 1958, as of
October 1, 1960, as of August 1, 1964, as of April 1,
1966, as of May 1, 1967, as of May 1, 1968, as of October
1, 1970, as of March 1, 1972, as of March 15, 1973, as of
February 15, 1974, as of August 15, 1974, as of September
15, 1975, as of June 1, 1976, as of July 1, 1976, as of
August 1, 1977, as of September 1, 1978, as of August 1,
1981, as of November 1, 1983, as of November 1, 1984, as
of December 1, 1984, as of September 1, 1985, as of
October 1, 1986, as of June 1, 1989, and as of August 1,
1989; and
WHEREAS, Section 8 of the Original Mortgage provides,
among other things, that the form of each series of bonds
(other than the initial issue of bonds) issued thereunder
shall be established by an indenture supplemental thereto
authorized by resolution of the Board of Directors of the
Company, and that the form of each series, as established
by the Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof, and
may also contain other provisions as the Board of
Directors may, in its discretion, cause to be inserted
therein expressing or referring to the terms and
conditions upon which such bonds are to be issued and
secured under the Original Mortgage or any indenture
supplemental thereto or in modification thereof; and
WHEREAS, the Company now desires to provide for the
establishment, execution, authentication and delivery
under the Mortgage of bonds of a series to be known as
its "First Mortgage Bonds, 8% Series, due 2006" (the
bonds of said series being hereinafter sometimes referred
to as the "2006 Bonds"), limited to the aggregate
principal amount of Fifty-Eight Million Eight Hundred
Thousand Dollars ($58,800,000); and
WHEREAS, all things necessary to make the 2006 Bonds
hereinafter described, when duly executed by the Company
and authenticated and delivered by the Trustee, valid,
binding and legal obligations of the Company, and to make
this Thirty-Fourth Supplemental Indenture a valid and
binding agreement supplemental to the Original Mortgage,
have been done and performed; and
WHEREAS, the execution and delivery by the Company of
this Thirty-Fourth Supplemental Indenture, and the terms
of the 2006 Bonds, have been duly authorized by the Board
of Directors of the Company by appropriate resolutions of
said Board; and
WHEREAS, it is provided in and by the Original Mortgage
that the Company will execute and deliver such further
instruments and do such further acts as may be necessary
or proper to carry out more effectually the purposes of
the Mortgage, and to make subject to the lien thereof any
property thereafter acquired and intended to be subject
to the lien thereof; and
WHEREAS, the Company has, since the date of execution and
delivery of the Original Mortgage, purchased and acquired
property and desires by this Thirty-Fourth Supplemental
Indenture specifically to convey to the Trustee such
property for the better protection and security of the
bonds issued and to be issued under the Original
Mortgage, or any indenture supplemental thereto;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the acceptance or
purchase of the 2006 Bonds by the registered owners
thereof, and of the sum of one dollar, lawful money of
the United States of America, to the Company duly paid by
the Trustee at or before the execution and delivery of
this Thirty-Fourth Supplemental Indenture, the receipt
whereof is hereby acknowledged, the Company and the
Trustee, respectively, have entered into, executed and
delivered this Thirty-Fourth Supplemental Indenture, for
the uses and purposes hereinafter expressed, that is to
say:
Section 1. The Company has granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, and by these presents
does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm
(subject, however, to permitted encumbrances as defined
in the Original Mortgage), unto said American National
Bank and Trust Company of Chicago, as Trustee, as herein
provided, and its successors in the trusts declared in
the Original Mortgage and herein, all of the property,
real, personal and mixed, tangible and intangible, of
every kind, character and description which the Company
has acquired since the execution and delivery of the
Original Mortgage and now owns (except property, rights
and assets of a character similar to that excluded from
the lien and operation of the Mortgage by the Granting
Clauses of the Original Mortgage, which property, rights
and assets are excluded from the lien and operation of
the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality
of the foregoing, the following described property
situated within the State of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired
by it after May 1, 1940, the date of the Original
Mortgage, and located in the Counties of Bartholomew,
Boone, Daviess, Greene, Hamilton, Hancock, Hendricks,
Johnson, Knox, Madison, Marion, Monroe, Morgan, Owen,
Pike, Putnam, Shelby and Sullivan, State of Indiana; and
any additions to or extensions of any such systems,
together with the buildings, erections, structures,
transmission lines, power stations, sub-stations,
engines, boilers, condensers, pumps, turbines, machinery,
tools, conduits, manholes, insulators, dynamos, motors,
lamps, cables, wires, poles, towers, cross-arms, piers,
abutments, switchboard equipment, meters, appliances,
instruments, apparatus, appurtenances, maps, records,
ledgers, contracts, facilities and other property or
equipment used or provided for use in connection with the
construction, maintenance, repair and operation thereof;
together also with all of the rights, privileges, rights-
of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits and easements of the
Company in respect of the construction, maintenance,
repair and operation of said systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired
by the Company after May 1, 1940, the date of the
Original Mortgage, and located in the City of
Indianapolis, Marion County, Indiana, and any additions
to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters,
engines, tanks, pipe lines, mains, connections, service
pipes, meters, tools, instruments, appliances, apparatus,
facilities, machinery and other property and equipment
used or provided for use in the construction,
maintenance, repair and operation thereof; and together
also with all of the rights, privileges, rights-of-way,
franchises, licenses, grants, liberties, immunities,
ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and
operation of said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances,
licenses, and other authorizations by or from any state,
county, municipality, or other governmental authority,
acquired by the Company after May 1, 1940, the date of
the Original Mortgage, including particularly, but not
limited to, any indeterminate permits
under the Public Service Commission Act of the State of
Indiana, and all Acts amendatory thereof and supplemental
thereto, and all right, title and interest therein now
owned by the Company, and all renewals, extensions and
modifications of said indeterminate permits, franchises,
ordinances, licenses, and other authorizations, and of
the indeterminate permits, franchises, ordinances,
licenses, and other authorizations referred to in Part
VII of the Granting Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed
(except any in the Mortgage expressly excepted), now
owned by the Company and wheresoever situated, including
(without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the
foregoing or of any general description contained in the
Mortgages) all lands, flowage rights, water rights,
flumes, raceways, dams, rights-of-way and roads; all
plants for the generation of electricity by water, steam
and/or other power, power houses, telephone systems,
water systems, steam heat and power plants, hot water
plants, sub-stations, transmission lines, distribution
systems, bridges, culverts and tracks; all offices,
buildings and structures and the equipment thereof; all
machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors;
all appliances whether electrical, gas or mechanical,
conduits, cables and lines; all pipes whether for water,
steam heat and power, or other purposes; all mains and
pipes, service pipes, fittings, valves and connections,
poles, wires, tools, implements, apparatus, furniture and
chattels; all municipal franchises, indeterminate
permits, and other permits; all lines for the
transportation, transmission and/or distribution of
electric current, steam heat and power or water for any
purpose, including towers, poles, wires, cables, pipes,
conduits and all apparatus for use in connection
therewith; all real estate, lands, leases, leaseholds;
all contracts, whether heat, light, power, water or
street lighting contracts; all easements, servitudes,
licenses, permits, rights, powers, franchises,
privileges, rights-of-way and other rights in or relating
to real estate or the occupancy of the same and (except
as hereinafter or in the Mortgage expressly excepted) all
the right, title and interest of the Company in and to
all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described or referred to;
Together with all and singular the tenements,
hereditaments and appurtenances belonging or in anywise
appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 64
of the Original Mortgage), the tools, rent, revenues,
issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the
aforesaid property, indeterminate permits, franchises,
ordinances, licenses
and other authorizations and every part and parcel
thereof.
Section 2. There shall be and is hereby established a
series of bonds, limited in aggregate principal amount to
Fifty-Eight Million Eight Hundred Thousand Dollars
($58,800,000) to be issued under and secured by the
Mortgage, to be designated "8% Series, due 2006", each of
which shall also bear the descriptive title "First
Mortgage Bonds"; said bonds shall mature on October 15,
2006, and shall be issued only as fully registered bonds
without coupons in the denomination of one thousand
dollars and any larger denomination which is a multiple
of one thousand dollars; they shall bear interest from
the beginning of the current interest period during which
each bond is dated, at the rate per annum designated in
the title thereof, payable semi-annually, on October 15
and April 15 of each year; and the principal of, premium,
if any, and interest on each said bond shall be payable
in lawful money of the United States of America at the
office or agency of the Company in the City of Chicago,
Illinois. The person in whose name any such bond is
registered at the close of business on any record date
(as hereinafter defined) with respect to any interest
payment date shall be entitled to receive the interest
payable on such interest payment date, except if and to
the extent the Company shall default in the payment of
the interest due on such interest payment date, in which
case such defaulted interest shall be paid to the person
in whose name such bond is registered on the date of
payment of such defaulted interest or on a subsequent
record date for such payment if one shall have been
established as hereinafter provided. A subsequent record
date with respect to payment of interest in default may
be established by or in behalf of the Company by notice
mailed to the holders of the 2006 Bonds not less than ten
(10) days preceding such record date, which record date
shall not be more than thirty (30) days prior to the
subsequent interest payment date. The term "record date"
as used in this Section with respect to any regular
interest payment date shall mean the tenth day next
preceding such interest payment date, or, if such tenth
day shall be a legal holiday or a day on which banking
institutions in the City of Chicago, Illinois, are
authorized by law to close, the day next succeeding such
tenth day which shall not be a legal holiday or a day on
which such institutions are authorized to close.
American National Bank and Trust Company of Chicago is
hereby designated and appointed the office and agency of
the Company for the payment of the principal of, premium,
if any, and interest on the 2006 Bonds and for the
registration, transfer and exchange of such bonds as
hereinafter provided; all reference herein to the office
or agency of the Company for the payment of the principal
of, premium, if any, and interest on the 2006 Bonds, or
the registration, transfer or exchange thereof, being to
American National Bank and Trust Company of Chicago. In
the event of the resignation or inability to act of
American National Bank and Trust Company of Chicago, then
a successor agent for all such purposes in the City of
Chicago, Illinois, shall be appointed by the Board of
Directors of the Company.
The 2006 Bonds shall be dated as of the date of
authentication thereof, except as otherwise provided in
Section 10 of the Original Mortgage.
The 2006 Bonds shall not be subject to redemption by the
Company prior to the maturity thereof except out of
monies deposited with the Trustee representing the
proceeds of mortgaged and pledged property taken by the
exercise of the power of eminent domain or otherwise as
provided in paragraph B of Section 69 of the Mortgage, in
which event the redemption price of the 2006 Bonds so to
be redeemed shall be the principal amount of such bonds
plus accrued interest thereon to the date of redemption.
At the option of the holder, any 2006 Bonds, upon
surrender thereof at said office or agency of the Company
together with a written instrument of transfer in form
approved by the Company duly executed by the holder or by
his duly authorized attorney, shall be exchangeable for a
like aggregate principal amount of fully registered bonds
of the same series of other authorized denominations.
The 2006 Bonds shall be transferable on the books of the
Company at said office or agency of the Company in the
City of Chicago, Illinois, by the registered holder
thereof, in person or by his duly authorized attorney,
upon surrender thereof for cancellation.
The Company shall not be required to make transfers or
exchanges of any of the 2006 Bonds for a period of ten
(10) days next preceding any interest payment date of
said bonds.
No charge shall be made upon any transfer or exchange of
any of the 2006 Bonds other than for any tax or taxes or
other governmental charge required to be paid by the
Company.
The 2006 Bonds shall be limited to an aggregate principal
amount of Fifty-Eight Million Eight Hundred Thousand
Dollars ($58,800,000) and shall be issued under the
provisions of Article VI and Article VII of the Original
Mortgage.
Section 3. The 2006 Bonds, and the Trustee's Certificate
to be endorsed thereon, shall be in the following forms,
respectively:
[Form of Face of Bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 8% Series, Due 2006
Due October 15, 2006
No. $
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the
State of Indiana (hereinafter called the Company), for
value received, hereby promises to pay to
or registered
assigns, on October 15, 2006, at the office or agency of
the Company in the City of Chicago, Illinois,
Dollars in lawful money of
the United States of America, and to pay to the
registered owner hereof interest thereon from the
fifteenth day of October or the fifteenth day of April
next preceding the date of this bond, at the rate of 8
per centum per annum in like lawful money, at said office
or agency on October 15 and April 15 in each year, until
the Company's obligation with respect to the payment of
such principal shall have been discharged. The interest
payable hereunder on October 15 or April 15 will, subject
to the exception provided in Section 2 of the Thirty-
Fourth Supplemental Indenture hereinafter mentioned, be
paid to the person in whose name this bond is registered
at the close of business on the record date, which shall
be the tenth day next preceding such interest payment
date or, if such tenth day shall be a legal holiday or a
day on which banking institutions in the City of Chicago,
Illinois, are authorized by law to close, the day next
succeeding such tenth day which shall not be a legal
holiday or a day on which such institutions are
authorized to close.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND
SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS
SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT AS THOUGH
FULLY SET FORTH IN THIS PLACE.
This bond shall not become obligatory until American
National Bank and Trust Company of Chicago, the Trustee
under the Mortgage, or its successor thereunder, shall
have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, Indianapolis Power & Light Company
has caused this Bond to be signed in its name by its
President or one of its Vice-Presidents, by his signature
or a facsimile thereof, and a facsimile of its corporate
seal to be imprinted hereon, attested by its Secretary or
one of its Assistant Secretaries, by his signature or a
facsimile thereof.
INDIANAPOLIS POWER & LIGHT COMPANY
Dated: By_______________________________________
President
Attest:
By_____________________________
Secretary
[Form of Trustee's Certificate on Bonds]
Trustee's Certificate
This Bond is one of the bonds, of the series herein
designated, provided for in the within-mentioned Mortgage
and Thirty-Fourth Supplemental Indenture.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
Trustee
By______________________________________
Authorized Signature
[Form of Reverse Side of Bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 8% Series, due 2006
Due October 15, 2006
This Bond is one of an issue of bonds of the Company,
issuable in series, and is one of a series known as its
First Mortgage Bonds, 8% Series, due 2006 (herein
sometimes called the "2006 Bonds") limited in aggregate
principal amount to Fifty-Eight Million Eight Hundred
Thousand Dollars ($58,800,000) and established by a
Thirty-Fourth Supplemental Indenture, dated as of October
15, 1991, all bonds of all series issued and to be issued
under and equally secured (except insofar as any sinking
or other fund, established in accordance with the
provisions of the Mortgage hereinafter mentioned, may
afford additional security for the bonds of any
particular series) by a Mortgage and Deed of Trust, dated
as of May 1, 1940, executed by the Company to American
National Bank and Trust Company of Chicago, as Trustee
(which Mortgage and Deed of Trust as supplemented and
modified by all supplemental indentures thereto is
hereinafter referred to as the "Mortgage"), to which
Mortgage reference is made for a description of the
property mortgaged and pledged, the nature and extent of
the security, the rights of the bearers or registered
owners of the bonds in respect of such security, the
duties and immunities of the Trustee and terms and
conditions upon which the bonds are secured.
With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or of the holders of
the bonds and/or coupons and/or the terms and provisions
of the Mortgage and/or any instruments supplemental
thereto may be modified or altered by affirmative vote of
the holders of at least sixty-six and two-thirds per
centum (66-2/3%) in principal amount of the bonds
affected by such modification or alteration then
outstanding under the Mortgage (excluding bonds
disqualified from voting by reason of the Company's
interest therein as provided in the Mortgage); provided
that no such modification or alteration shall permit the
extension of the maturity of the principal of this bond
or the reduction in the rate of interest hereon or any
other modification in the terms of payment of such
principal or interest without the consent of the holder
hereof. The principal hereof may be declared or may
become due and payable prior to the stated date of
maturity hereof, on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence
of a completed default as in the Mortgage provided.
The 2006 Bonds are issued only in fully registered form
without coupons in the denomination of one thousand
dollars and any larger denomination which is a multiple
of one thousand dollars. In the manner and upon payment
of the charges hereinafter mentioned, the 2006 Bonds,
upon surrender thereof at the office or agency of the
Company in the City of Chicago, Illinois, together with a
written instrument of transfer in form approved by the
Company duly executed by the registered holder or by his
duly authorized attorney, are exchangeable for a like
aggregate principal amount of fully registered bonds of
the same series of other authorized denominations.
This bond is transferable as prescribed in the Mortgage
by the registered owner hereof in person, or by his duly
authorized attorney, at the office or agency of the
Company in the City of Chicago, Illinois, upon surrender
and cancellation of this bond and upon presentation of a
written instrument of transfer, duly executed and upon
payment of the charges hereinafter mentioned, and,
thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the
transferee in exchange hereof as provided in the
Mortgage. The Company and the Trustee may deem and treat
the person in whose name this bond is registered as the
absolute owner hereof for the purpose of receiving
payment and for all other purposes.
No charge shall be made upon any transfer or exchange of
any of the 2006 Bonds other than for any tax or taxes or
other governmental charge required to be paid by the
Company.
The Company shall not be required to make transfers or
exchanges of any of the 2006 Bonds for a period of ten
(10) days next preceding any interest payment date of
said bonds.
The 2006 Bonds are not subject to redemption by the
Company prior to the maturity thereof except out of
monies deposited with the Trustee representing the
proceeds of mortgaged and pledged property taken by the
exercise of the power of eminent domain or otherwise as
provided in paragraph B of Section 69 of the Mortgage, in
which event the redemption price of the 2006 Bonds so to
be redeemed shall be the principal amount of such bonds
plus accrued interest thereon to the date of redemption.
No recourse shall be had for the payment of the principal
of or interest on this bond against any incorporator or
any past, present or future subscriber to the capital
stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such,
either directly or through the Company or any predecessor
or successor corporation, under any rule of law, statute
or constitution or by the enforcement of any assessment
or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors, as
such, being waived and released by the terms of the
Mortgage.
Section 4. Until the 2006 Bonds in definitive form are
ready for delivery, the Company may execute, and upon its
request in writing the Trustee shall authenticate and
deliver, in lieu thereof, fully registered 2006 Bonds in
temporary form, as provided in Section 15 of the Original
Mortgage. Such bonds may, in lieu of the statement of the
specific redemption prices required to be set forth in
such bonds in definitive form, include a reference to
this Thirty-Fourth Supplemental Indenture for a statement
of such redemption prices.
Section 5. The covenant of the Company to make annual
payments to the Trustee for a Maintenance and Improvement
Fund as contained in Section 41 of the Original Mortgage
and in the first twenty-four Supplemental Indentures to
the Original Mortgage creating the several series of
First Mortgage Bonds presently outstanding under such
Supplemental Indentures shall not apply to, or be for the
benefit of the 2006 Bonds, and the Company reserves the
right, without any consent of, or other action by, the
holders of the 2006 Bonds, to amend, modify or delete the
provisions of the Mortgage relating to such Maintenance
and Improvement Fund, and by acceptance of the 2006
Bonds, the holders thereof waive any right or privilege
so to consent or take any other action with respect
thereto.
Section 6. The Company covenants that, so long as any of
the 2006 Bonds shall remain outstanding, it will comply
with all of the provisions of Section 47 of the Original
Mortgage, including the provisions with respect to
limitations on dividends and distributions and the
purchase and redemption of stock.
Section 7. The Trustee hereby accepts the trusts herein
declared, provided and created and agrees to perform the
same upon the terms and conditions herein and in the
Mortgage set forth and upon the following terms and
conditions:
The recitals contained herein and in the bonds shall be
taken as the statements of the Company and the Trustee
assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the
validity or adequacy of the security afforded hereby, or
as to the validity of this Thirty-Fourth Supplemental
Indenture or of the bonds issued hereunder.
Section 8. Whenever in this Thirty-Fourth Supplemental
Indenture either of the parties hereto is named or
referred to, this shall, subject to the provisions of
Article XVII of the Original Mortgage, be deemed to
include the successors or assigns of such party, and all
the covenants and agreements in this Thirty-Fourth
Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the benefit of
the respective successors and assigns of such parties,
whether so expressed or not.
Section 9. Nothing in this Thirty-Fourth Supplemental
Indenture, expressed or implied, is intended or shall be
construed to confer upon, or to give to, any person, co-
partnership or corporation, other than the parties hereto
and the holders of the bonds and coupons outstanding
under the Mortgage, any right, remedy, or claim under or
by reason of this Thirty-Fourth Supplemental Indenture or
any covenant, condition or stipulation hereof; and all
the covenants, conditions, stipulations, promises and
agreements in this Thirty-Fourth Supplemental Indenture
contained by or on behalf of the Company shall be for the
sole and exclusive benefit of the parties hereto and of
the holders of the bonds and of the coupons outstanding
under the Mortgage.
Section 10. The Company covenants that all of the terms,
provisions and conditions of the Mortgage shall be
applicable to the 2006 Bonds issued hereunder, except as
herein otherwise provided and except insofar as the same
may be inconsistent with the provisions of this Thirty-
Fourth Supplemental Indenture.
Section 11. This Thirty-Fourth Supplemental Indenture is
dated as of October 15, 1991, although executed and
delivered on the date of the acknowledgment hereof by the
Trustee; and shall be simultaneously executed and
delivered in several counterparts, and all such
counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
In Witness Whereof, Indianapolis Power & Light Company,
party of the first part, has caused its corporate name to
be hereunto affixed and this instrument to be signed and
acknowledged by its President or a Vice-President, and
its corporate seal to be hereto affixed and attested by
its Secretary or an Assistant Secretary, for and in its
behalf, and American National Bank and Trust Company of
Chicago, party of the second part, as Trustee, has caused
its corporate name to be hereunto affixed and this
instrument to be signed and acknowledged by one of its
Vice-Presidents, and its corporate seal to be hereto
affixed and attested by one of its Assistant Secretaries,
all as of the day, month and year first above written.
Indianapolis Power & Light Company
(SEAL)
By /s/ Marcus E. Woods
Marcus E. Woods, Vice-President.
Attest:
/s/ Clark L. Snyder,
Clark L. Snyder, Assistant Secretary.
American National Bank and Trust
Company of Chicago,
(SEAL)
By /s/ Ronald B. Bremen
Ronald B. Bremen, Vice-President.
Attest:
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary.
State of Indiana )
) ss.:
County of Marion )
On this 16th day of October, in the year 1991, before me,
a Notary Public in and for the County and State
aforesaid, personally came Marcus E. Woods, Vice-
President, and Clark L. Snyder, Assistant Secretary, of
Indianapolis Power & Light Company, one of the
corporations described in and which executed the
foregoing instrument, to me personally known and known to
me personally to be such Vice-President, and Assistant
Secretary, respectively. Said Marcus E. Woods, and Clark
L. Snyder being by me severally duly sworn did depose and
say that the said Marcus E. Woods resides in Hendricks
County, Indiana and the said Clark L. Snyder resides in
Marion County, Indiana; that said Marcus E. Woods is Vice-
President and said Clark L. Snyder is Assistant Secretary
of said Indianapolis Power & Light Company; that each of
them knows the corporate seal of said corporation; that
the seal affixed to said instrument and bearing the name
of said corporation is such corporate seal; that it was
so affixed by order of the Board of Directors of said
corporation; and that each of them signed his name
thereto by like order; and each of them acknowledged the
execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and
the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 16th day of October, 1991.
/s/ Gloria K. Bryant
Gloria K. Bryant, Notary Public.
My Commission Expires:
June 11, 1995
My County of Residence is:
Marion
(Notarial Seal)
State of Illinois )
) ss.:
County of Cook )
On this 16th day of October, in the year 1991, before me,
a Notary Public in and for the County and State
aforesaid, personally came Ronald B. Bremen, Vice-
President, and Robert M. Selangowski, Assistant
Secretary, of American National Bank and Trust Company of
Chicago, one of the corporations described in and which
executed the foregoing instrument, to me personally known
and known to me personally to be such Vice-President and
Assistant Secretary, respectively. Said Ronald B. Bremen
and Robert M. Selangowski, being by me severally sworn
did depose and say that the said Ronald B. Bremen resides
in Glencoe, Illinois, and that the said Robert M.
Selangowski resides in Lansing, Illinois; that said
Ronald B. Bremen is Vice-President and said Robert M.
Selangowski is Assistant Secretary of said American
National Bank and Trust Company of Chicago; that each of
them knows the corporate seal of said corporation; that
the seal affixed to said instrument and bearing the name
of said corporation is such corporate seal; that it was
so affixed by authority of the Board of Directors of said
corporation; that each of them signed his name thereto by
like authority; and each of them acknowledged the
execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and
the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 16th day of October, 1991.
/s/ Bernadette G. Janairo
Bernadette G. Janairo,
Notary Public.
(Notarial Seal)
My Commission Expires: May 22, 1994
My County of Residence is:
Cook
This instrument was prepared by
Marcus E. Woods,
Attorney at Law
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
TRUSTEE
---------------
THIRTY-FIFTH SUPPLEMENTAL INDENTURE
---------------
DATED AS OF AUGUST 1, 1992
ESTABLISHING FIRST MORTGAGE BONDS,
7-3/8% SERIES, DUE 2007
TABLE OF CONTENTS*
of
THIRTY-FIFTH SUPPLEMENTAL INDENTURE
of
INDIANAPOLIS POWER & LIGHT COMPANY
PAGE
----
Parties..................................................... 1
Recitals.................................................... 1
Section 1 Granting clauses............................... 3
Part I Electric Distributing Systems......... 3
Part II Steam and Hot Water Distributing
Systems............................ 4
Part III Indeterminate Permits and Franchises 4
Part IV Other Property....................... 5
General and after-acquired title............... 6
Section 2 Designation of Thirty-Third series of bonds and
kind and denominations thereof............... 6
Record date for payment of interest............ 7
Designation of American National Bank and Trust
Company of Chicago as paying agent........... 7
Exchange of bonds.............................. 7
Transfer of bonds.............................. 8
Series limited to $80,000,000.................. 8
Section 3 Form of fully registered bond.................. 8
Form of Trustee's certificate on bonds......... 8
Section 4 Temporary bonds................................ 13
Section 5 Annual Payments for Maintenance and Improvement
Fund......................................... 13
Section 6 Compliance with Section 47 of Original Mortgage
with respect to dividend restrictions........ 14
Section 7 Acceptance of trusts by Trustee and conditions
of acceptance................................. 14
Section 8 Successors and assigns......................... 14
Section 9 Limitation of rights hereunder................. 14
_________________________
*Table of Contents is not part of the Thirty-Fifth
Supplemental Indenture and should not be considered such.
It is included herein only for purposes of convenient
reference.
PAGE
- ----
Section 10 Compliance with terms, provisions and
conditions of Mortgage....................... 15
Section 11 Execution in counterparts...................... 15
Testimonium................................................. 16
Signatures and Seals........................................ 16
Acknowledgements............................................ 17
ii
THIS THIRTY-FIFTH SUPPLEMENTAL INDENTURE, dated as of
August 1, 1992, between INDIANAPOLIS POWER & LIGHT
COMPANY, a corporation of the State of Indiana,
hereinafter sometimes called the "Company," party of the
first part, and AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, a national banking association, as Trustee,
hereinafter sometimes called the "Trustee," party of the
second part;
WHEREAS, the Company by a Mortgage and Deed of Trust
(hereinafter sometimes called the "Original Mortgage"
when referred to as existing prior to any supplement
thereto or modification thereof, and the "Mortgage" when
referred to as now or heretofore supplemented and
modified) dated as of May 1, 1940, made to said American
National Bank and Trust Company of Chicago, as Trustee,
to secure the payment of the bonds issued from time to
time under the Mortgage for the purposes of and subject
to the limitations specified in the Mortgage, and to
secure the performance of the covenants therein
contained, conveyed to the Trustee thereunder upon
certain trusts, terms and conditions, and with and
subject to certain provisos and covenants therein
contained, all and singular the property, rights and
franchises which the Company then owned or should
thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any
indenture supplemental thereto, to which Mortgage
reference is hereby made for greater certainty; and
WHEREAS, the Original Mortgage has been supplemented and
modified by supplemental indentures dated as of May 1,
1942, as of February 1, 1948, as of April 1, 1949, as of
October 1, 1949, as of February 1, 1951, as of March 1,
1953, as of June 1, 1956, as of March 1, 1958, as of
October 1, 1960, as of August 1, 1964, as of April 1,
1966, as of May 1, 1967, as of May 1, 1968, as of October
1, 1970, as of March 1, 1972, as of March 15, 1973, as of
February 15, 1974, as of August 15, 1974, as of September
15, 1975, as of June 1, 1976, as of July 1, 1976, as of
August 1, 1977, as of September 1, 1978, as of August 1,
1981, as of November 1, 1983, as of November 1, 1984, as
of December 1, 1984, as of September 1, 1985, as of
October 1, 1986, as of June 1, 1989, as of August 1,
1989, and as of October 15, 1991;
WHEREAS, Section 8 of the Original Mortgage provides,
among other things, that the form of each series of bonds
(other than the initial issue of bonds) issued thereunder
shall be established by an indenture supplemental thereto
authorized by resolution of the Board of Directors of the
Company, and that the form of each series, as established
by the Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof, and
may also contain such other provisions as the Board of
Directors may, in its discretion, cause to be inserted
therein expressing or referring to the terms and
conditions upon which such bonds are to be issued and
secured under the Original Mortgage or any indenture
supplemental thereto or in modification thereof; and
WHEREAS, the Company now desires to provide for the
establishment, execution, authentication and delivery
under the Mortgage of bonds of a series to be known as
its "First Mortgage Bonds, 7-3/8% Series, due 2007" (the
bonds of said series being hereinafter sometimes referred
to as the "2007 Bonds"), limited to the aggregate
principal amount of Eighty Million Dollars ($80,000,000);
and
WHEREAS, all things necessary to make the 2007 Bonds
hereinafter described, when duly executed by the Company
and authenticated and delivered by the Trustee, valid,
binding and legal obligations of the Company, and to make
this Thirty-Fifth Supplemental Indenture a valid and
binding agreement supplemental to the Original Mortgage,
have been done and performed; and
WHEREAS, the execution and delivery by the Company of
this Thirty-Fifth Supplemental Indenture, and the terms
of the 2007 Bonds, have been duly authorized by the Board
of Directors of the Company by appropriate resolutions of
said Board; and
WHEREAS, it is provided in and by the Original Mortgage
that the Company will execute and deliver such further
instruments and do such further acts as may be necessary
or proper to carry out more effectually the purposes of
the Mortgage, and to make subject to the lien thereof any
property thereafter acquired and intended to be subject
to the lien thereof; and
WHEREAS, the Company has, since the date of execution and
delivery of the Original Mortgage, purchased and acquired
property and desires by this Thirty-Fifth Supplemental
Indenture specifically to convey to the Trustee such
property for the better protection and security of the
bonds issued and to be issued under the Original
Mortgage, or any indenture supplemental thereto;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the acceptance or
purchase of the 2007 Bonds by the registered owners
thereof, and of the sum of one dollar, lawful money of
the United States of America, to the Company duly paid by
the Trustee at or before the execution and delivery of
this Thirty-Fifth Supplemental Indenture, the receipt
whereof is hereby acknowledged, the Company and the
Trustee, respectively, have entered into, executed and
delivered this Thirty-Fifth Supplemental Indenture, for
the uses and purposes hereinafter expressed, that is to
say:
Section 1. The Company has granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, and by these presents
does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm
(subject, however, to permitted encumbrances as defined
in the Original Mortgage), unto said American National
Bank and Trust Company of Chicago, as Trustee, as herein
provided, and its successors in the trusts declared in
the Original Mortgage and herein, all of the property,
real, personal and mixed, tangible and intangible, of
every kind, character and description which the Company
has acquired since the execution and delivery of the
Original Mortgage and now owns (except property, rights
and assets of a character similar to that excluded from
the lien and operation of the Mortgage by the Granting
Clauses of the Original Mortgage, which property, rights
and assets are excluded from the lien and operation of
the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality
of the foregoing, the following described property
situated within the State of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired
by it after May 1, 1940, the date of the Original
Mortgage, and located in the Counties of Bartholomew,
Boone, Daviess, Greene, Hamilton, Hancock, Hendricks,
Johnson, Knox, Madison, Marion, Monroe, Morgan, Owen,
Pike, Putnam, Shelby and Sullivan, State of Indiana; and
any additions to or extensions of any such systems,
together with the buildings, erections, structures,
transmission lines, power stations, sub-stations,
engines, boilers, condensers, pumps, turbines, machinery,
tools, conduits, manholes, insulators, dynamos, motors,
lamps, cables, wires, poles, towers, cross-arms, piers,
abutments, switchboard equipment, meters, appliances,
instruments, apparatus, appurtenances, maps, records,
ledgers, contracts, facilities and other property or
equipment used or provided for use in connection with the
construction, maintenance, repair and operation thereof;
together also with all of the rights, privileges, rights-
of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits and easements of the
Company in respect of the construction, maintenance,
repair and operation of said systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired
by the Company after May 1, 1940, the date of the
Original Mortgage, and located in the City of
Indianapolis, Marion County, Indiana, and any additions
to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters,
engines, tanks, pipe lines, mains, connections, service
pipes, meters, tools, instruments, appliances, apparatus,
facilities, machinery and other property and equipment
used or provided for use in the construction,
maintenance, repair and operation thereof; and together
also with all of the rights, privileges, rights-of-way,
franchises, licenses, grants, liberties, immunities,
ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and
operation of said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances,
licenses, and other authorizations by or from any state,
county, municipality, or other governmental authority,
acquired by the Company after May 1, 1940, the date of
the Original Mortgage, including particularly, but not
limited to, any indeterminate permits
under the Public Service Commission Act of the State of
Indiana, and all Acts amendatory thereof and supplemental
thereto, and all right, title and interest therein now
owned by the Company, and all renewals, extensions and
modifications of said indeterminate permits, franchises,
ordinances, licenses, and other authorizations, and of
the indeterminate permits, franchises, ordinances,
licenses, and other authorizations referred to in Part
VII of the Granting Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed
(except any in the Mortgage expressly excepted), now
owned by the Company and wheresoever situated, including
(without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the
foregoing or of any general description contained in the
Mortgages) all lands, flowage rights, water rights,
flumes, raceways, dams, rights-of-way and roads; all
plants for the generation of electricity by water, steam
and/or other power, power houses, telephone systems,
water systems, steam heat and power plants, hot water
plants, sub-stations, transmission lines, distribution
systems, bridges, culverts and tracks; all offices,
buildings and structures and the equipment thereof; all
machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors;
all appliances whether electrical, gas or mechanical,
conduits, cables and lines; all pipes whether for water,
steam heat and power, or other purposes; all mains and
pipes, service pipes, fittings, valves and connections,
poles, wires, tools, implements, apparatus, furniture and
chattels; all municipal franchises, indeterminate
permits, and other permits; all lines for the
transportation, transmission and/or distribution of
electric current, steam heat and power or water for any
purpose, including towers, poles, wires, cables, pipes,
conduits and all apparatus for use in connection
therewith; all real estate, lands, leases, leaseholds;
all contracts, whether heat, light, power, water or
street lighting contracts; all easements, servitudes,
licenses, permits, rights, powers, franchises,
privileges, rights-of-way and other rights in or relating
to real estate or the occupancy of the same and (except
as hereinafter or in the Mortgage expressly excepted) all
the right, title and interest of the Company in and to
all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described or referred to;
Together with all and singular the tenements,
hereditaments and appurtenances belonging or in anywise
appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 64
of the Original Mortgage), the tools, rents, revenues,
issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the
aforesaid property, indeterminate permits, franchises,
ordinances, licenses
and other authorizations and every part and parcel
thereof.
Section 2. There shall be and is hereby established a
series of bonds, limited in aggregate principal amount to
Eighty Million Dollars ($80,000,000) to be issued under
and secured by the Mortgage, to be designated "7-3/8%
Series, due 2007", each of which shall also bear the
descriptive title "First Mortgage Bonds"; said bonds
shall mature on August 1, 2007, and shall be issued only
as fully registered bonds without coupons in the
denomination of one thousand dollars and any larger
denomination which is a whole multiple of one thousand
dollars; they shall bear interest from the beginning of
the current interest period during which each bond is
dated, at the rate per annum designated in the title
thereof, payable semi-annually, on August 1 and February
1 of each year; and the principal of, premium, if any,
and interest on each said bond shall be payable in lawful
money of the United States of America at the office or
agency of the Company in the City of Chicago, Illinois.
The person in whose name any such bond is registered at
the close of business on any record date (as hereinafter
defined) with respect to any interest payment date shall
be entitled to receive the interest payable on such
interest payment date, except if and to the extent the
Company shall default in the payment of the interest due
on such interest payment date, in which case such
defaulted interest shall be paid to the person in whose
name such bond is registered on the date of payment of
such defaulted interest or on a subsequent record date
for such payment if one shall have been established as
hereinafter provided. A subsequent record date with
respect to payment of interest in default may be
established by or in behalf of the Company by notice
mailed to the holders of the 2007 Bonds not less than ten
(10) days preceding such record date, which record date
shall not be more than thirty (30) days prior to the
subsequent interest payment date. The term "record date"
as used in this Section with respect to any regular
interest payment date shall mean the tenth day next
preceding such interest payment date, or, if such tenth
day shall be a legal holiday or a day on which banking
institutions in the City of Chicago, Illinois, are
authorized by law to close, the day next succeeding such
tenth day which shall not be a legal holiday or a day on
which such institutions are authorized to close.
American National Bank and Trust Company of Chicago is
hereby designated and appointed the office and agency of
the Company for the payment of the principal of, premium,
if any, and interest on the 2007 Bonds and for the
registration, transfer and exchange of such bonds as
hereinafter provided; all reference herein to the office
or agency of the Company for the payment of the principal
of, premium, if any, and interest on the 2007 Bonds, or
the registration, transfer or exchange thereof, being to
American National Bank and Trust Company of Chicago. In
the event of the resignation or inability to act of
American National Bank and Trust Company of Chicago, then
a successor agent for all such purposes in the City of
Chicago, Illinois, shall be appointed by the Board of
Directors of the Company.
The 2007 Bonds shall be dated as of the date of
authentication thereof, except as otherwise provided in
Section 10 of the Original Mortgage.
The 2007 Bonds shall not be subject to redemption by the
Company prior to the maturity thereof except out of
monies deposited with the Trustee representing the
proceeds of mortgaged and pledged property taken by the
exercise of the power of eminent domain or otherwise as
provided in paragraph B of Section 69 of the Mortgage, in
which event the redemption price of the 2007 Bonds so to
be redeemed shall be the principal amount of such bonds
plus accrued interest thereon to the date of redemption.
At the option of the holder, any 2007 Bond, upon
surrender thereof at said office or agency of the Company
together with a written instrument of transfer in form
approved by the Company duly executed by the holder or by
his duly authorized attorney, shall be exchangeable for a
like aggregate principal amount of fully registered bonds
of the same series of other authorized denominations.
The 2007 Bonds shall be transferable on the books of the
Company at said office or agency of the Company in the
City of Chicago, Illinois, by the registered holder
thereof, in person or by his duly authorized attorney,
upon surrender thereof for cancellation.
The Company shall not be required to make transfers or
exchanges of any of the 2007 Bonds for a period of ten
(10) days next preceding any interest payment date of
said bonds.
No charge shall be made upon any transfer or exchange of
any of the 2007 Bonds other than for any tax or taxes or
other governmental charge required to be paid by the
Company.
The 2007 Bonds shall be limited to an aggregate principal
amount of Eighty Million Dollars ($80,000,000) and shall
be issued under the provisions of Article VII of the
Original Mortgage.
Section 3. The 2007 Bonds and the Trustee's Certificate
to be endorsed thereon, shall be in the following forms,
respectively:
[Form of Face of Bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 7-3/8% Series, Due 2007
Due August 1, 2007
No. $
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the
State of Indiana (hereinafter called the "Company"), for
value received, hereby promises to pay to
or registered assigns, on August 1, 2007, at the office
or agency of the Company in the City of Chicago,
Illinois,
Dollars in lawful money of
the United States of America, and to pay to the
registered owner hereof interest thereon from the first
day of August or the first day of February next preceding
the date of this bond, at the rate of 7-3/8 per centum
per annum in like lawful money, at said office or agency
on August 1 and February 1 in each year, until the
Company's obligation with respect to the payment of such
principal shall have been discharged. The interest
payable hereunder on August 1 or February 1 will, subject
to the exception provided in Section 2 of the Thirty-
Fifth Supplemental Indenture hereinafter mentioned, be
paid to the person in whose name this bond is registered
at the close of business on the record date, which shall
be the tenth day next preceding such interest payment
date or, if such tenth day shall be a legal holiday or a
day on which banking institutions in the City of Chicago,
Illinois, are authorized by law to close, the day next
succeeding such tenth day which shall not be a legal
holiday or a day on which such institutions are
authorized to close.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND
SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS
SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT AS THOUGH
FULLY SET FORTH IN THIS PLACE.
IN WITNESS WHEREOF, Indianapolis Power & Light Company
has caused this Bond to be signed in its name by its
President or one of its Vice-Presidents, by his signature
or a facsimile thereof, and a facsimile of its corporate
seal to be imprinted hereon, attested by its Secretary or
one of its Assistant Secretaries, by his signature or a
facsimile thereof.
INDIANAPOLIS POWER & LIGHT COMPANY
Dated: By_______________________________________
President
Attest:
By_____________________________
Secretary
[Form of Trustee's Certificate on Bonds]
Trustee's Certificate
This Bond is one of the bonds, of the series herein
designated, provided for in the within-mentioned Mortgage
and Thirty-Fifth Supplemental Indenture.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
Trustee
By______________________________________
Authorized Signature
[Form of Reverse Side of Bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 7-3/8% Series, due 2007
Due August 1, 2007
This Bond is one of an issue of bonds of the Company,
issuable in series, and is one of a series known as its
First Mortgage Bonds, 7-3/8% Series, due 2007 (herein
sometimes called the "2007 Bonds") limited in aggregate
principal amount to Eighty Million Dollars ($80,000,000)
and established by a Thirty-Fifth Supplemental Indenture,
dated as of August 1, 1992, all bonds of all series
issued and to be issued under and equally secured (except
insofar as any sinking or other fund, established in
accordance with the provisions of the Mortgage
hereinafter mentioned, may afford additional security for
the bonds of any particular series) by a Mortgage and
Deed of Trust, dated as of May 1, 1940, executed by the
Company to American National Bank and Trust Company of
Chicago, as Trustee (which Mortgage and Deed of Trust as
supplemented and modified by all supplemental indentures
thereto is hereinafter referred to as the "Mortgage"), to
which Mortgage reference is made for a description of the
property mortgaged and pledged, the nature and extent of
the security, the rights of the bearers or registered
owners of the bonds in respect of such security, the
duties and immunities of the Trustee and terms and
conditions upon which the bonds are secured.
With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or of the holders of
the bonds and/or coupons and/or the terms and provisions
of the Mortgage and/or any instruments supplemental
thereto may be modified or altered by affirmative vote of
the holders of at least sixty-six and two-thirds per
centum (66-2/3%) in principal amount of the bonds
affected by such modification or alteration then
outstanding under the Mortgage (excluding bonds
disqualified from voting by reason of the Company's
interest therein as provided in the Mortgage); provided
that no such modification or alteration shall permit the
extension of the maturity of the principal of this bond
or the reduction in the rate of interest hereon or any
other modification in the terms of payment of such
principal or interest without the consent of the holder
hereof. The principal hereof may be declared or may
become due and payable prior to the stated date of
maturity hereof, on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence
of a completed default as in the Mortgage provided.
The 2007 Bonds are issuable only in fully registered form
without coupons in the denomination of one thousand
dollars and any larger denomination which is a multiple
of one thousand dollars. In the manner and upon payment
of the charges hereinafter mentioned, the 2007 Bonds,
upon surrender thereof at the office or agency of the
Company in the City of Chicago, Illinois, together with a
written instrument of transfer in form approved by the
Company duly executed by the registered holder or by his
duly authorized attorney, are exchangeable for a like
aggregate principal amount of fully registered bonds of
the same series of other authorized denominations.
This bond is transferable as prescribed in the Mortgage
by the registered owner hereof in person, or by his duly
authorized attorney, at the office or agency of the
Company in the City of Chicago, Illinois, upon surrender
and cancellation of this bond and upon presentation of a
written instrument of transfer, duly executed and upon
payment of the charges hereinafter mentioned, and,
thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the
transferee in exchange hereof as provided in the
Mortgage. The Company and the Trustee may deem and treat
the person in whose name this bond is registered as the
absolute owner hereof for the purpose of receiving
payment and for all other purposes.
No charge shall be made upon any transfer or exchange of
any of the 2007 Bonds other than for any tax or taxes or
other governmental charge required to be paid by the
Company.
The Company shall not be require to make transfers or
exchanges of any of the 2007 Bonds for a period of ten
(10) days next preceding any interest payment date of
said bonds.
The 2007 Bonds are not subject to redemption by the
Company prior to the maturity thereof except out of
monies deposited with the Trustee representing the
proceeds of mortgaged and pledged property taken by the
exercise of the power of eminent domain or otherwise as
provided in paragraph B of Section 69 of the Mortgage, in
which event the redemption price of the 2007 Bonds so to
be redeemed shall be the principal amount of such bonds
plus accrued interest thereon to the date of redemption.
No recourse shall be had for the payment of the principal
of or interest on this bond against any incorporator or
any past, present or future subscriber to the capital
stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such,
either directly or through the Company or any predecessor
or successor corporation, under any rule of law, statute
or constitution or by the enforcement of any assessment
or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors, as
such, being waived and released by the terms of the
Mortgage.
Section 4. Until the 2007 Bonds in definitive form are
ready for delivery, the Company may execute, and upon its
request in writing the Trustee shall authenticate and
deliver, in lieu thereof, fully registered 2007 Bonds in
temporary form, as provided in Section 15 of the Original
Mortgage. Such bonds may, in lieu of the statement of the
specific redemption prices required to be set forth in
such bonds in definitive form, include a reference to
this Thirty-Fifth Supplemental Indenture for a statement
of such redemption prices.
Section 5. The covenant of the Company to make annual
payments to the Trustee for a Maintenance and Improvement
Fund as contained in Section 41 of the Original Mortgage
and in the first twenty-four Supplemental Indentures to
the Original Mortgage creating the several series of
First Mortgage Bonds presently outstanding under such
Supplemental Indentures shall not apply to, or be for the
benefit of the 2007 Bonds, and the Company reserves the
right, without any consent of, or other action by, the
holders of the 2007 Bonds, to amend, modify or delete the
provisions of the Mortgage relating to such Maintenance
and Improvement Fund, and by acceptance of the 2007
Bonds, the holders thereof waive any right or privilege
so to consent or take any other action with respect
thereto.
Section 6. The Company covenants that, so long as any of
the 2007 Bonds shall remain outstanding, it will comply
with all of the provisions of Section 47 of the Original
Mortgage, including the provisions with respect to
limitations on dividends and distributions and the
purchase and redemption of stock.
Section 7. The Trustee hereby accepts the trusts herein
declared, provided and created and agrees to perform the
same upon the terms and conditions herein and in the
Mortgage set forth and upon the following terms and
conditions:
The recitals contained herein and in the bonds shall be
taken as the statements of the Company and the Trustee
assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the
validity or adequacy of the security afforded hereby, or
as to the validity of this Thirty-Fifth Supplemental
Indenture or of the bonds issued hereunder.
Section 8. Whenever in this Thirty-Fifth Supplemental
Indenture either of the parties hereto is named or
referred to, this shall, subject to the provisions of
Article XVII of the Original Mortgage, be deemed to
include the successors or assigns of such party, and all
the covenants and agreements in this Thirty-Fifth
Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the benefit of
the respective successors and assigns of such parties,
whether so expressed or not.
Section 9. Nothing in this Thirty-Fifth Supplemental
Indenture, expressed or implied, is intended or shall be
construed to confer upon, or to give to, any person, co-
partnership or corporation, other than the parties hereto
and the holders of the bonds and coupons outstanding
under the Mortgage, any right, remedy, or claim under or
by reason of this Thirty-Fifth Supplemental Indenture or
any covenant, condition or stipulation hereof; and all
the covenants, conditions, stipulations, promises and
agreements in this Thirty-Fifth Supplemental Indenture
contained by or on behalf of the Company shall be for the
sole and exclusive benefit of the parties hereto and of
the holders of the bonds and of the coupons outstanding
under the Mortgage.
Section 10. The Company covenants that all of the terms,
provisions and conditions of the Mortgage shall be
applicable to the 2007 Bonds issued hereunder, except as
herein otherwise provided and except insofar as the same
may be inconsistent with the provisions of this Thirty-
Fifth Supplemental Indenture.
Section 11. This Thirty-Fifth Supplemental Indenture is
dated as of August 1, 1992, although executed and
delivered on the date of the acknowledgment hereof by the
Trustee; and shall be simultaneously executed and
delivered in several counterparts, and all such
counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
In Witness Whereof, Indianapolis Power & Light Company,
party of the first part, has caused its corporate name to
be hereunto affixed and this instrument to be signed and
acknowledged by its President or a Vice-President, and
its corporate seal to be hereto affixed and attested by
its Secretary or an Assistant Secretary, for and in its
behalf, and American National Bank and Trust Company of
Chicago, party of the second part, as Trustee, has caused
its corporate name to be hereunto affixed and this
instrument to be signed and acknowledged by one of its
Vice-Presidents, and its corporate seal to be hereto
affixed and attested by one of its Assistant Secretaries,
all as of the day, month and year first above written.
Indianapolis Power & Light Company
(SEAL)
Attest: By /s/ Marcus E. Woods
Marcus E. Woods,
Vice-President
/s/ Clark L. Snyder,
Clark L. Snyder,
Assistant Secretary
American National Bank and Trust
Company of Chicago,
(SEAL)
Attest: By /s/ Ronald B. Bremen
Ronald B. Bremen,
Vice-President
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary.
State of Indiana )
) ss.:
County of Marion )
On this 31st day of July, in the year 1992, before me, a
Notary Public in and for the County and State aforesaid,
personally came Marcus E. Woods, Vice-President, and
Clark L. Snyder, Assistant Secretary, of Indianapolis
Power & Light Company, one of the corporations described
in and which executed the foregoing instrument, to me
personally known and known to me personally to be such
Vice-President, and Assistant Secretary, respectively.
Said Marcus E. Woods, and Clark L. Snyder being by me
severally duly sworn did depose and say that the said
Marcus E. Woods resides in Hendricks County, Indiana and
the said Clark L. Snyder resides in Marion County,
Indiana; that said Marcus E. Woods is Vice-President and
said Clark L. Snyder is Assistant Secretary of said
Indianapolis Power & Light Company; that each of them
knows the corporate seal of said corporation; that the
seal affixed to said instrument and bearing the name of
said corporation is such corporate seal; that it was so
affixed by order of the Board of Directors of said
corporation; and that each of them signed his name
thereto by like order; and each of them acknowledged the
execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and
the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 31st day of July, 1992.
/s/ Gloria K. Bryant
Gloria K. Bryant
Notary Public
My Commission Expires:
June 11, 1995
My County of Residence is:
Marion
(Notarial Seal)
State of Illinois )
) ss.:
County of Cook )
On this 31st day of July, in the year 1992, before me, a
Notary Public in and for the County and State aforesaid,
personally came Ronald B. Bremen, Vice-President, and
Robert M. Selangowski, Assistant Secretary, of American
National Bank and Trust Company of Chicago, one of the
corporations described in and which executed the
foregoing instrument, to me personally known and known to
me personally to be such Vice-President and Assistant
Secretary, respectively. Said Ronald B. Bremen and Robert
M. Selangowski, being by me severally sworn did depose
and say that the said Ronald B. Bremen resides in
Glencoe, Illinois, and that the said Robert M.
Selangowski resides in Lansing, Illinois; that said
Ronald B. Bremen is Vice-President and said Robert M.
Selangowski is Assistant Secretary of said American
National Bank and Trust Company of Chicago; that each of
them knows the corporate seal of said corporation; that
the seal affixed to said instrument and bearing the name
of said corporation is such corporate seal; that it was
so affixed by authority of the Board of Directors of said
corporation; that each of them signed his name thereto by
like authority; and each of them acknowledged the
execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and
the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 31st day of July, 1992.
/s/ Bernadette G. Janairo
Bernadette G. Janairo,
Notary Public
(Notarial Seal)
My Commission Expires: May 22, 1994
My County of Residence is:
Cook
This instrument was prepared by
Marcus E. Woods,
Attorney at Law
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
TRUSTEE
---------------
THIRTY-SIXTH SUPPLEMENTAL INDENTURE
---------------
DATED AS OF APRIL 1, 1993
ESTABLISHING FIRST MORTGAGE BONDS,
6.10% SERIES, DUE 2016
TABLE OF CONTENTS*
of
THIRTY-SIXTH SUPPLEMENTAL INDENTURE
of
INDIANAPOLIS POWER & LIGHT COMPANY
PAGE
----
Parties.................................................. 1
Recitals................................................. 1
Section 1 Granting clauses............................. 3
Part I Electric Distributing Systems....... 4
Part II Steam and Hot Water Distributing
Systems.......................... 4
Part III Indeterminate Permits and
Franchises....................... 5
Part IV Other Property..................... 5
General and after-acquired title............. 6
Section 2 Designation of Thirty-Fourth series of bonds
and kind and denominations thereof......... 6
Designation of Company or American National
Bank and Trust Company of Chicago as paying
agent...................................... 7
Purpose of bonds............................. 7
Redemption of bonds.......................... 8
Exchange of bonds............................ 12
Transfer of bonds............................ 13
Series limited to $41,850,000................ 13
Section 3 Form of fully registered bond................ 13
Form of Trustee's certificate on bonds....... 16
Section 4 Temporary bonds.............................. 19
Section 5 Payment of principal and interest; credits... 19
Section 6 Annual Payments for Maintenance and Improvement
Fund....................................... 20
Section 7 Compliance with Section 47 of Original Mortgage
with respect to dividend restrictions...... 20
Section 8 Acceptance of trusts by Trustee and conditions
of acceptance.............................. 20
_________________________
*Table of Contents is not part of the Thirty-Sixth
Supplemental Indenture and should not be considered such.
It is included herein only for purposes of convenient
reference.
PAGE
----
Section 9 Successors and assigns....................... 20
Section 10 Limitation of rights hereunder............... 21
Section 11 Compliance with terms, provisions and
conditions of Mortgage..................... 21
Section 12 Execution in counterparts.................... 21
Testimonium.............................................. 22
Signatures and Seals..................................... 22
Acknowledgements......................................... 23
ii
THIS THIRTY-SIXTH SUPPLEMENTAL INDENTURE, dated as of
April 1, 1993, between INDIANAPOLIS POWER & LIGHT
COMPANY, a corporation of the State of Indiana,
hereinafter sometimes called the "Company," party of the
first part, and AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, a national banking association, as Trustee,
hereinafter sometimes called the "Trustee," party of the
second part;
WHEREAS, the Company by a Mortgage and Deed of Trust
(hereinafter sometimes called the "Original Mortgage"
when referred to as existing prior to any supplement
thereto or modification thereof, and the "Mortgage" when
referred to as now or heretofore supplemented and
modified) dated as of May 1, 1940, made to said American
National Bank and Trust Company of Chicago, as Trustee,
to secure the payment of the bonds issued from time to
time under the Mortgage for the purposes of and subject
to the limitations specified in the Mortgage, and to
secure the performance of the covenants therein
contained, conveyed to the Trustee thereunder upon
certain trusts, terms and conditions, and with and
subject to certain provisos and covenants therein
contained, all and singular the property, rights and
franchises which the Company then owned or should
thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any
indenture supplemental thereto, to which Mortgage
reference is hereby made for greater certainty; and
WHEREAS, the Original Mortgage has been supplemented and
modified by supplemental indentures dated as of May 1,
1942, as of February 1, 1948, as of April 1, 1949, as of
October 1, 1949, as of February 1, 1951, as of March 1,
1953, as of June 1, 1956, as of March 1, 1958, as of
October 1, 1960, as of August 1, 1964, as of April 1,
1966, as of May 1, 1967, as of May 1, 1968, as of October
1, 1970, as of March 1, 1972, as of March 15, 1973, as of
February 15, 1974, as of August 15, 1974, as of September
15, 1975, as of June 1, 1976, as of July 1, 1976, as of
August 1, 1977, as of September 1, 1978, as of August 1,
1981, as of November 1, 1983, as of November 1, 1984, as
of December 1, 1984, as of September 1, 1985, as of
October 1, 1986, as of June 1, 1989, as of August 1,
1989, as of October 15, 1991 and as of August 1, 1992;
WHEREAS, Section 8 of the Original Mortgage provides,
among other things, that the form of each series of bonds
(other than the initial issue of bonds) issued thereunder
shall be established by an indenture supplemental thereto
authorized by resolution of the Board of Directors of the
Company, and that the form of each series, as established
by the Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof, and
may also contain such other provisions as the Board of
Directors may, in its discretion, cause to be inserted
therein expressing or referring to the terms and
conditions upon which such bonds are to be issued and
secured under the Original Mortgage or any indenture
supplemental thereto or in modification thereof; and
WHEREAS, the Company has entered into a Loan Agreement,
dated as of April 1, 1993 (hereinafter called the "Loan
Agreement") with the City of Petersburg, Indiana (the
"City"), in order to obtain funds for the refunding of
the aggregate principal amount of Forty One Million Eight
Hundred Fifty Thousand Dollars ($41,850,000) of the
City's Pollution Control Revenue Bonds, Series 1976 and
Series 1978 (Indianapolis Power & Light Company Project)
issued by the City pursuant to a related loan agreements
to pay a portion of the cost of acquisition,
construction, installation and equipping by the Company
of certain pollution control facilities (the
"Facilities"), and pursuant to the Loan Agreement the
Company has agreed to issue a series of its bonds under
the Mortgage and this Thirty-Sixth Supplemental Indenture
in order to evidence and secure its indebtedness under
the Loan Agreement; and
WHEREAS, the Company now desires to provide for the
establishment, execution, authentication and delivery
under the Mortgage of bonds of a series to be known as
its "First Mortgage Bonds, 6.10% Series, due 2016" (the
bonds of said series being hereinafter sometimes referred
to as the "2016 PC Bond"), limited to the aggregate
principal amount of Forty One Million Eight Hundred Fifty
Thousnd Dollars ($41,850,000); and
WHEREAS, all things necessary to make the 2016 PC Bond
hereinafter described, when duly executed by the Company
and authenticated and delivered by the Trustee, a valid,
binding and legal obligation of the Company, and to make
this Thirty-Sixth Supplemental Indenture a valid and
binding agreement supplemental to the Original Mortgage,
have been done and performed; and
WHEREAS, the execution and delivery by the Company of
this Thirty-Sixth Supplemental Indenture, and the terms
of the 2016 PC Bond, have been duly authorized by the
Board of Directors of the Company by appropriate
resolutions of said Board; and
WHEREAS, it is provided in and by the Original Mortgage
that the Company will execute and deliver such further
instruments and do such further acts as may be necessary
or proper to carry out more effectually the purposes of
the Mortgage, and to make subject to the lien thereof any
property thereafter acquired and intended to be subject
to the lien thereof; and
WHEREAS, the Company has, since the date of execution and
delivery of the Original Mortgage, purchased and acquired
property and desires by this Thirty-Sixth Supplemental
Indenture specifically to convey to the Trustee such
property for the better protection and security of the
bonds issued and to be issued under the Original
Mortgage, or any indenture supplemental thereto;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the acceptance or
purchase of the 2016 PC Bond by the registered owners
thereof, and of the sum of one dollar, lawful money of
the United States of America, to the Company duly paid by
the Trustee at or before the execution and delivery of
this Thirty-Sixth Supplemental Indenture, the receipt
whereof is hereby acknowledged, the Company and the
Trustee, respectively, have entered into, executed and
delivered this Thirty-Sixth Supplemental Indenture, for
the uses and purposes hereinafter expressed, that is to
say:
Section 1. The Company has granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, and by these presents
does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm
(subject, however, to permitted encumbrances as defined
in the Original Mortgage), unto said American National
Bank and Trust Company of Chicago, as Trustee, as herein
provided, and its successors in the trusts declared in
the Original Mortgage and herein, all of the property,
real, personal and mixed, tangible and intangible, of
every kind, character and description which the Company
has acquired since the execution and delivery of the
Original Mortgage and now owns (except property, rights
and assets of a character similar to that excluded from
the lien and operation of the Mortgage by the Granting
Clauses of the Original Mortgage, which property, rights
and assets are excluded from the lien and operation of
the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality
of the foregoing, the following described property
situated within the State of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired
by it after May 1, 1940, the date of the Original
Mortgage, and located in the Counties of Bartholomew,
Boone, Daviess, Greene, Hamilton, Hancock, Hendricks,
Johnson, Knox, Madison, Marion, Monroe, Morgan, Owen,
Pike, Putnam, Shelby and Sullivan, State of Indiana; and
any additions to or extensions of any such systems,
together with the buildings, erections, structures,
transmission lines, power stations, sub-stations,
engines, boilers, condensers, pumps, turbines, machinery,
tools, conduits, manholes, insulators, dynamos, motors,
lamps, cables, wires, poles, towers, cross-arms, piers,
abutments, switchboard equipment, meters, appliances,
instruments, apparatus, appurtenances, maps, records,
ledgers, contracts, facilities and other property or
equipment used or provided for use in connection with the
construction, maintenance, repair and operation thereof;
together also with all of the rights, privileges, rights-
of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits and easements of the
Company in respect of the construction, maintenance,
repair and operation of said systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired
by the Company after May 1, 1940, the date of the
Original Mortgage, and located in the City of
Indianapolis, Marion County, Indiana, and any additions
to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters,
engines, tanks, pipe lines, mains, connections, service
pipes, meters, tools, instruments, appliances, apparatus,
facilities, machinery and other property and equipment
used or provided for use in the construction,
maintenance, repair and operation thereof; and together
also with all of the rights, privileges, rights-of-way,
franchises, licenses, grants, liberties, immunities,
ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and
operation of said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances,
licenses, and other authorizations by or from any state,
county, municipality, or other governmental authority,
acquired by the Company after May 1, 1940, the date of
the Original Mortgage, including particularly, but not
limited to, any indeterminate permits
under the Public Service Commission Act of the State of
Indiana, and all Acts amendatory thereof and supplemental
thereto, and all right, title and interest therein now
owned by the Company, and all renewals, extensions and
modifications of said indeterminate permits, franchises,
ordinances, licenses, and other authorizations, and of
the indeterminate permits, franchises, ordinances,
licenses, and other authorizations referred to in Part
VII of the Granting Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed
(except any in the Mortgage expressly excepted), now
owned by the Company and wheresoever situated, including
(without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the
foregoing or of any general description contained in the
Mortgage) all lands, flowage rights, water rights,
flumes, raceways, dams, rights-of-way and roads; all
plants for the generation of electricity by water, steam
and/or other power, power houses, telephone systems,
water systems, steam heat and power plants, hot water
plants, sub-stations, transmission lines, distribution
systems, bridges, culverts and tracts; all offices,
buildings and structures and the equipment thereof; all
machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors;
all appliances whether electrical, gas or mechanical,
conduits, cables and lines; all pipes whether for water,
steam heat and power, or other purposes; all mains and
pipes, service pipes, fittings, valves and connections,
poles, wires, tools, implements, apparatus, furniture and
chattels; all municipal franchises, indeterminate
permits, and other permits; all lines for the
transportation, transmission and/or distribution of
electric current, steam heat and power or water for any
purpose, including towers, poles, wires, cables, pipes,
conduits and all apparatus for use in connection
therewith; all real estate, lands, leases, leaseholds;
all contracts, whether heat, light, power, water or
street lighting contracts; all easements, servitudes,
licenses, permits, rights, powers, franchises,
privileges, rights-of-way and other rights in or relating
to real estate or the occupancy of the same and (except
as hereinafter or in the Mortgage expressly excepted) all
the right, title and interest of the Company in and to
all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described or referred to;
Together with all and singular the tenements,
hereditaments and appurtenances belonging or in anywise
appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 64
of the Original Mortgage), the tolls, rents, revenues,
issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the
aforesaid property, indeterminate permits, franchises,
ordinances, licenses and other authorizations and every
part and parcel thereof.
Section 2. There shall be and is hereby established a
series of bonds, limited in aggregate principal amount to
Forty One Million Eight Hundred Fifty Thousand Dollars
($41,850,000) to be issued under and secured by the
Mortgage, to be designated "6.10% Series, due 2016", each
of which shall also bear the descriptive title "First
Mortgage Bonds"; said bonds shall mature on January 1,
2016, and shall be issued only as fully registered bonds
without coupons in the denomination of five thousand
dollars and any larger denomination which is a whole
multiple of five thousand dollars; they shall bear
interest from the beginning of the current interest
period during which each bond is dated, at the rate per
annum designated in the title thereof, payable semi-
annually, on January 1 and July 1 of each year (except
that the first interest payment thereon shall be made
July 1, 1993 for the three-month period from April 1,
1993 through June 30, 1993); and the principal of,
premium, if any, and interest on said bond shall be
payable in lawful money of the United States of America
at the office of the Company in the City of Indianapolis,
Indiana, or, if no such office is maintained, at American
National Bank and Trust Company of Chicago, which is
hereby designated and appointed the office and agency of
the Company in the City of Chicago, Illinois, for the
payment of the principal of, premium, if any, and
interest on the 2016 PC Bond, if necessary, and for the
registration, transfer and exchange of such bond as
hereinafter provided; all reference herein to the office
or agency of the Company in the City of Chicago,
Illinois, for the payment of the principal of, premium,
if any, and interest on the 2016 PC Bond, or the
registration, transfer or exchange thereof, being to
American National Bank and Trust Company of Chicago. In
event of the resignation or inability to act of American
National Bank and Trust Company of Chicago, then a
successor agent for all such purposes in the City of
Chicago, Illinois, shall be appointed by the Board of
Directors of the Company.
The 2016 PC Bond shall be dated as of the date of
authentication thereof, except as otherwise provided in
Section 10 of the Original Mortgage.
The 2016 PC Bond will be issued to evidence and secure a
loan to the Company by the City pursuant to the Loan
Agreement of certain funds to be acquired by the City
through the issuance of City of Petersburg, Indiana,
Pollution Control Refunding Revenue Bonds, Series 1993A
(Indianapolis Power & Light Company Project)(the "Series
1993A Bonds"), authenticated and delivered under and
pursuant to an Indenture of Trust dated as of April 1,
1993 (hereinafter called the "City Indenture"), by and
between the City and National City Bank, Indiana, as
Trustee (the "City Trustee"). Pursuant to the City's
pledge and assignment of the Loan Agreement, as set forth
in the City Indenture, the 2016 PC Bond shall be issued
to the City and assigned to the City Trustee. All of the
proceeds of the Series 1993A Bonds will be used for the
refunding of the aggregate principal amount of Forty One
Million Eight Hundred Fifty Thousand Dollars
($41,850,000) of the City's Pollution Control Revenue
Bonds, Series 1976 and Series 1978 (Indianapolis Power &
Light Company Project) issued by the City pursuant to
applicable loan agreements.
Upon the notice and in the manner and with the effect
provided in this Section 2, the 2016 PC Bond shall be
redeemable prior to the maturity thereof under any one or
more of the following circumstances:
(a) In whole, at the option of the Company, if the
Facilities or Unit 3 of the Petersburg Generating Station
serviced by the Facilities shall have been damaged or
destroyed (i) to such extent that they cannot be
reasonably expected, in the opinion of the Company, to be
restored within a period of six (6) months to the
condition thereof immediately preceding such damage or
destruction, or (ii) to such extent that the Company, in
its reasonable opinion, is thereby prevented from
carrying on its normal operations for a period of six (6)
months or more, or (iii) to such extent that the
restoration thereof would not be, taking into
consideration the net proceeds of any insurance payable
as a result of such damage or destruction, economic in
the reasonable opinion of the Company.
(b) In whole, at the option of the Company, if title to,
or the temporary use of, all or substantially all of the
Facilities or Unit 3 of the Petersburg Generation Station
serviced by the Facilities, shall have been taken, under
the exercise of the power of eminent domain, or should
any governmental body or agency exercise any right which
it may have to purchase or designate a purchaser of the
same, or should such property be sold to any governmental
body or agency so that the result of such taking or
takings is that (i) the Company, in its reasonable
opinion, is thereby prevented from carrying on its normal
operations of either the Facilities or such Unit 3 for a
period of six (6) months or more, (ii) the restoration
required as a result of the taking cannot be reasonably
expected, in the opinion of the Company, to be completed
in a period of six (6) months, or (iii) the restoration
thereof, taking into consideration the net proceeds from
such eminent domain award, would not be economic in the
reasonable opinion of the Company.
(c) In whole, at the option of the Company, if, as a
result of any changes in the Constitution or law of the
State of Indiana or the Constitution or law of the United
States of America or of legislative or administrative
action (whether state or federal) or by final decree,
judgment or order of any court or administrative body
(whether state or federal) entered after the contest
thereof by the Company in good faith or the decision of
the Company not to contest the same, the Loan Agreement
shall, in the reasonable opinion of counsel for the
Company, have become void or unenforceable or impossible
of performance in accordance with the intent and purpose
of the parties as expressed in the Loan Agreement; or
unreasonable burdens or excessive liabilities shall, in
the reasonable opinion of the Company, have been imposed
upon the City or the Company, with respect to the
Facilities or operation thereof, including without
limitation federal, state or other ad valorem, property,
income or other taxes not being imposed on the date of
the Loan Agreement other than ad valorem taxes presently
levied upon privately owned property used for the same
general purpose as the Facilities.
(d) In whole, at the option of the Company, if changes
in the economic availability of raw materials, operating
supplies or facilities necessary for the operation of the
Facilities or the operation of Unit 3 of the Petersburg
Generating Station serviced by the Facilities shall have
occurred or technological or other changes shall have
occurred which render the Facilities or said Unit 3
uneconomic for use in the reasonable opinion of the
Company.
(e) In part, at the option of the Company, to the extent
of net proceeds received from any condemnation award,
taking or sale as stated herein, if title to, or the
temporary use of any portion of the Facilities shall have
been taken under the exercise of the power of eminent
domain, or should any governmental body or agency
exercise any right it may have to purchase or designate a
purchaser of the same, or should such property be sold to
any governmental body or agency; provided the Company
shall furnish to the City and the City Trustee a
certificate of an Independent Engineer (as defined in the
Loan Agreement) selected by the Company stating (i) that
the property forming the part of the Facilities that was
taken by such condemnation, taking or sale is not
essential to the character or significance of the
Facilities, or (ii) that the Facilities have been
restored to a condition substantially equivalent to their
condition prior to the taking by such condemnation,
taking or sale proceedings, or (iii) that improvements
have been acquired which are suitable for the operation
of the Facilities.
(f) In whole, at any time on or after January 1, 2003,
or in part on any interest payment date on or after
January 1, 2003, at the option of the Company at a price
equal to the principal amount of the 2016 PC Bond so to
be redeemed and accrued interest to the date of
redemption, together with a premium equal to a percentage
of the principal amount thereof set forth under the
heading "Redemption Premium" in the form of the 2016 PC
Bond hereinafter recited, so long as the Company is not
in default under the Loan Agreement or the 2016 PC Bond.
(g) the event all or substantially all of the mortgaged
and pledged property under the Mortgage, or all or
substantially all such property used in the business of
generating, manufacturing, transporting, transmitting,
distributing or supplying electricity, should be taken by
exercise of the power of eminent domain, or should any
governmental body or agency exercise any right which it
may have to purchase or designate a purchaser of the
same, or should such property be sold to any governmental
body or agency, the Company shall be obligated to redeem
the 2016 PC Bond outstanding as promptly as possible in
accordance with paragraph B of Section 69 of the Original
Mortgage.
(h) In the event that the Company is notified by the
City Trustee that (i) an event of default under the City
Indenture has occurred and is continuing, and (ii) the
City Trustee has declared the principal of all the Series
1993A Bonds then outstanding immediately due and payable
pursuant to the City Indenture, the Company shall call
for redemption, on a redemption date selected by it not
later than thirty (30) days following the date on which
such notice is mailed, the 2016 PC Bond outstanding, and
shall on such redemption date redeem the same; provided,
however, that such requirement of redemption shall be
deemed waived, if prior to the date fixed for such
redemption of the 2016 PC Bond (x) such event of default
is waived or cured as set forth in the City Indenture, or
(y) there shall have occurred any completed default (as
defined in the Mortgage) which affects any bond of any
series outstanding under the Mortgage and which completed
default has not been cured and made good prior to such
redemption date, it being the intent of this proviso
that, in lieu of such right to redemption, the holder of
the 2016 PC Bond shall be entitled only to such rights as
are available to the holders of bonds of any other series
outstanding under the Mortgage in the event of such
completed default; and in case of any subsequent
occurrence or continuance of the events described in (i)
and (ii) of this Section 2(h), the Company shall have the
same obligation (subject to the same proviso) to redeem
the 2016 PC Bond.
(i) In the event the City Trustee notifies the Company
and the City that the interest payable on the Series
1993A Bonds held by persons other than a "substantial
user" or a "related person" as those terms are used in
Section 147(a)(2) of the Internal Revenue code of 1986,
as amended, has been determined by a court of competent
jurisdiction or a formal ruling of the Internal Revenue
Service to be subject to federal income taxation by
reason of a breach by the Company of any covenant,
agreement or representation in the Loan Agreement, the
Company shall call the 2016 PC Bond then outstanding to
be redeemed on the next succeeding interest payment date
within one hundred eighty (180) days after the date of
such notice; provided, however, that such requirement of
redemption, whether in whole or in part shall be deemed
waived if, prior to the date fixed for redemption of the
2016 PC Bond pursuant to this Section 2(i), there shall
have occurred any completed default (as defined in the
Mortgage) which affects any bond of any series
outstanding under the Mortgage and which completed
default has not been cured and made good prior to such
redemption date, it being the intent of this proviso
that, in lieu of such right to redemption, the holder of
the 2016 PC Bond shall be entitled only to such rights as
are available to the holders of bonds of any other series
outstanding under the Mortgage in the event of such
completed default; but when any such completed default
shall have been cured and made good, if interest on the
Series 1993A Bonds shall still be taxable as described
above, the Company shall have the same obligation
(subject to the same proviso) to redeem the 2016 PC Bond
on the next succeeding interest payment date within one
hundred eighty (180) days after the curing and making
good of such completed default; provided further, that
the Company may call for redemption such portion of the
2016 PC Bond, which in the written opinion of an attorney
or firm of attorneys of nationally recognized standing on
the subject of municipal bonds, would allow the City
Trustee to redeem the Series 1993A Bonds in part, which
redemption would have the result that the interest
payable on the Series 1993A Bonds remaining outstanding
after such redemption in part would not be subject to
federal income taxation in the hands of persons other
than a "substantial user" or a "related person" as those
terms are used in Section 147(a)(2) of the Internal
Revenue Code of 1986, as amended.
In case of redemption of 2016 PC Bond in whole for the
purpose of prepayment under the Loan Agreement pursuant
to subsections (a), (b), (c), (d), (f), (g), (h) or (i)
above, the amounts payable upon redemption of 2016 PC
Bond shall be a sum sufficient, together with other funds
deposited with the City Trustee and available for such
purpose, to pay the principal of (and premium, in the
case of redemption pursuant to (f) above), and interest
on the 2016 PC Bond then outstanding and to pay all
reasonable and necessary fees and expenses of the City
Trustee accrued and to accrue through final payment of
the 2016 PC Bond.
In case of redemption in part pursuant to (e), (f) or (i)
above, the amount payable by the Company under this
Thirty-Sixth Supplemental Indenture, the Loan Agreement
and the 2016 PC Bond shall be a sum sufficient, together
with other funds deposited with the Trustee and available
for such purpose, to pay the principal of (and premium in
the case of prepayment pursuant to (f) above) and
interest on the 2016 PC Bond so to be redeemed, which sum
together with other funds deposited with the City Trustee
and available for such purpose shall be sufficient to pay
the principal of, premium, if any, and interest on the
Series 1993A Bonds and to pay all reasonable and
necessary fees and expenses of the City Trustee accrued
and to accrue through such partial prepayment.
The 2016 PC Bond and the Series 1993A Bonds shall be
redeemable at any time within one hundred eighty (180)
days following the event or events described as giving
rise to an option of the Company to redeem them in
subsections (a), (b), (c), (d) or (e) above.
To exercise any of the options granted to redeem the 2016
PC Bond in whole or in part or to comply with any
obligations to redeem the 2016 PC Bond in whole or in
part imposed in this Section 2, the Company shall give
written notice of the date of redemption to the City
Trustee, which date shall be not less than thirty (30)
days nor more than ninety (90) days from the date the
notice is mailed. No further notice, by publication or
otherwise, shall be required for redemption of the 2016
PC Bond, and the requirements of Section 59 of the
Mortgage for notice by newspaper publication shall not
apply to the 2016 PC Bond.
At the option of the holder, the 2016 PC Bond, upon
surrender thereof at the office or agency of the Company
in Chicago, Illinois, together with a written instrument
of transfer in form approved by the Company duly executed
by the holder or by his duly authorized attorney, shall
be exchangeable for a like aggregate principal amount of
fully registered bonds of the same series of other
authorized denominations.
The 2016 PC Bond will be nontransferable except to the
City Trustee and successors thereto, if any, and to the
Company. To the extent that it is transferable, it is
transferable by the registered holder thereof, in person
or by attorney duly authorized in writing, on the books
of the Company at the office or agency of the Company in
the City of Chicago, Illinois, upon surrender thereof for
cancellation at said office and upon presentation of a
written instrument of transfer duly executed. Thereupon,
the Company shall issue in the name of the transferee,
and the Trustee shall authenticate and deliver, a new
registered 2016 PC Bond or Bonds, in authorized
denominations, of equal aggregate principal amount. Any
such transfer shall be subject to the terms and
conditions specified in the Mortgage and in this Thirty-
Sixth Supplemental Indenture.
The Company shall not be required to transfer or exchange
the 2016 PC Bond for a period of ten (10) days next
preceding any interest payment date of such bond.
Except as set forth herein, no charge shall be made upon
any transfer or exchange of any of the 2016 PC Bond other
than for any tax or taxes or other governmental charge
required to be paid by the Company.
The 2016 PC Bond shall be limited to an aggregate
principal amount of Forty One Million Eight Hundred Fifty
Thousand Dollars ($41,850,000) and shall be issued under
the provisions of Article VII of the Original Mortgage.
Section 3. The 2016 PC Bond, and the Trustee's
Certificate to be endorsed thereon, shall be in the
following forms, respectively:
[form of face of 2016 PC Bond]
This First Mortgage Bond, 6.10% Series, due 2016
(hereinafter called the "2016 PC Bond") is not
transferable except to a successor trustee under the
Indenture of Trust dated as of April 1, 1993, between the
City of Petersburg, Indiana and National City Bank,
Indiana, as the Trustee, or to Indianapolis Power & Light
Company.
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 6.10% Series, Due 2016
Due January 1, 2016
No. $
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the
State of Indiana (hereinafter called the "Company"), for
value received, hereby promises to pay to National City
Bank, Indiana, as the Trustee (hereinafter called the
"City Trustee") under the Indenture of Trust between the
City of Petersburg, Indiana (the "City") and the City
Trustee, dated as of April 1, 1993, (the "City
Indenture") or registered assigns, on January 1, 2016, at
the office of the Company, in the City of Indianapolis,
State of Indiana, or if no such office is maintained at
the time by the Company, then at the office or agency of
the Company for such purpose in the City of Chicago,
State of Illinois, Forty One Million Eight Hundred Fifty
Thousand Dollars ($41,850,000) in lawful money of the
United States of America, and to pay to the registered
owner hereof interest thereon from the first day of
January or the first day of July next preceding the date
of this 2016 PC Bond (except that the first interest
payment hereunder shall be made July 1, 1993 for the
three-month period from April 1, 1993 through June 30,
1993), at the rate of six and one-tenth per centum
(6.10%) per annum in like lawful money at said office or
agency, on January 1 and July 1 in each year, until the
Company's obligation with respect to the payment of such
principal shall have been discharged. The interest
payable hereunder on January 1 or July 1 will be paid to
the registered owner of this 2016 PC Bond at or before
the close of business on such dates, or if such date
shall be a Saturday, Sunday, holiday or a day on which
banking institutions in the City of Indianapolis or the
city of any paying agents are authorized by law to close,
on or before the close of business on the next succeeding
business day on which such banking institutions are open
for business.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS 2016
PC BOND SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH IN THIS PLACE.
No recourse shall be had for the payment of the principal
of or interest on this 2016 PC Bond against any
incorporator or any past, present or future subscriber to
the capital stock, stockholder, officer or director of
the Company or of any predecessor or successor
corporation, as such, either directly or through the
Company or any predecessor or successor corporation,
under any rule of law, statute, or constitution or by the
enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and
released by the terms of the Mortgage, as herein defined.
This 2016 PC Bond shall not become obligatory until
American National Bank and Trust Company of Chicago, the
Trustee under the Mortgage, as herein defined, or its
successor thereunder, shall have signed the form of
certificate endorsed hereon.
IN WITNESS WHEREOF, Indianapolis Power & Light Company
has caused this 2016 PC Bond to be signed in its name by
its President or one of its Vice-Presidents, by his
signature or a facsimile thereof, and its corporate seal
to be affixed hereon, attested by its Secretary or one of
its Assistant Secretaries, by his signature or a
facsimile thereof.
INDIANAPOLIS POWER & LIGHT COMPANY
Dated: By_______________________________________
Treasurer
Attest:
By_____________________________
Secretary
[Form of Trustee's Certificate on 2016 PC Bond]
Trustee's Certificate
This 2016 PC Bond is one of the bonds, of the series
herein designated, provided for in the within-mentioned
Mortgage and Thirty-Sixth Supplemental Indenture thereto.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
Trustee
By______________________________________
Authorized Signature
[Form of Reverse Side of 2016 PC Bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 6.10% Series, due 2016
Due January 1, 2016
This 2016 PC Bond is one of an issue of bonds of the
Company, issuable in series, and is one of a series known
as its First Mortgage Bonds, 6.10% Series, due 2016
(herein called the "2016 PC Bond") limited in aggregate
principal amount to Forty One Million Eight Hundred Fifty
Thousand Dollars ($41,850,000) and established by a
Thirty-Sixth Supplemental Indenture dated as of April 1,
1993, all bonds of all series issued and to be issued
under and equally secured (except insofar as any sinking
or other fund, established in accordance with the
provisions of the Mortgage hereinafter mentioned, may
afford additional security for the bonds of any
particular series) by a Mortgage and Deed of Trust, dated
as of May 1, 1940, executed by the Company to American
National Bank and Trust Company of Chicago, as the
Trustee (which Mortgage and Deed of Trust as supplemented
and modified by all supplemental indentures thereto is
hereinafter referred to as the "Mortgage"), to which
Mortgage reference is made for a description of the
property mortgaged and pledged, the nature and extent of
the security, the rights of the bearers or registered
owners of the bonds in respect of such security, the
duties and immunities of the Trustee and terms and
conditions upon which the bonds are secured.
This 2016 PC Bond evidences and secures a loan made by
the City to the Company, pursuant to a Loan Agreement,
dated as of April 1, 1993, between the City and the
Company (the "Loan Agreement"). In order to obtain funds
for such loan, the City, contemporaneously with the issue
of this 2016 PC Bond, will issue Forty One Million Eight
Hundred Fifty Thousand Dollars ($41,850,000) principal
amount of its Pollution Control Refunding Revenue Bonds,
Series 1993A (Indianapolis Power & Light Company Project)
(the "City Bonds") under and pursuant to the City
Indenture. The City Bonds are payable from payments made
by the Company of principal of, premium, if any, and
interest on this 2016 PC Bond and from moneys in the Bond
Fund created under the City Indenture. The obligation of
the Company to pay the principal of, premium, if any, and
interest on this 2016 PC Bond shall be discharged to the
extent that any moneys in said Bond Fund are available
for payments on the City Bonds and are directed by the
Company to be applied thereto, all as provided in the
Thirty-Sixth Supplemental Indenture.
This 2016 PC Bond is not subject to redemption prior to
January 1, 2003, except as provided in Section 2 of the
Thirty-Sixth Supplemental Indenture, to which reference
is made for full description of redemption provisions.
This 2016 PC Bond is subject to redemption in whole at
any time on or after January 1, 2003, or in part on any
interest payment date on or after January 1, 2003, at the
option of the Company, upon at least thirty (30) days
prior notice, all as provided in the Thirty-Sixth
Supplemental Indenture, at a price equal to the principal
amount of the 2016 PC Bond so to be redeemed and accrued
interest to the date of redemption, together with a
premium equal to a percentage of the principal amount
thereof set forth below under the heading "Redemption
Premium":
If Redeemed During the Twelve Months
Ending With the Thirty-First Day Redemption
of December of the Year Stated Premium
2003................... 2.0%
2004................... 1.0%
and without premium if redeemed after December 31, 2004.
With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or of the holders of
the bonds and/or coupons and/or the terms and provisions
of the Mortgage and/or any instruments supplemental
thereto may be modified or altered by affirmative vote of
the holders of at least sixty-six and two-thirds per
centum (66-2/3%) in principal amount of the bonds
affected by such modification or alteration then
outstanding under the Mortgage (excluding bonds
disqualified from voting by reason of the Company's
interest therein as provided in the Mortgage); provided
that no such modification or alteration shall permit the
extension of the maturity of the principal of this 2016
PC Bond or the reduction in the rate of interest hereon
or any other modification in the terms of payment of such
principal or interest without the consent of the holder
hereof. The principal hereof may be declared or may
become due and payable prior to the stated date of
maturity hereof, on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence
of a completed default as in the Mortgage provided.
No reference herein to the Mortgage, and no provision of
this 2016 PC Bond or of the Mortgage, shall alter or
impair the obligation of the Company, which is absolute
and unconditional, to pay, subject to the provisions of
the Thirty-Sixth Supplemental Indenture, the principal
of, and premium, if any, and interest on this 2016 PC
Bond at the place, at the respective times and at the
rate and the manner herein prescribed.
This 2016 PC Bond is issuable only in full registered
form without coupons in denominations of Five Thousand
Dollars and any larger denomination which is a whole
multiple of Five Thousand Dollars.
This 2016 PC Bond will be nontransferable except to the
City Trustee and successors thereto, if any, and to the
Company. To the extent that it is transferable, it is
transferable by the registered holder thereof, in person
or by attorney duly authorized in writing, on the books
of the Company at the office or agency of the Company in
the City of Chicago, Illinois, upon surrender thereof for
cancellation at said office and upon presentation of a
written instrument of transfer duly executed. Thereupon,
the Company shall issue in the name of the transferee,
and the Trustee shall authenticate and deliver, a new
registered 2016 PC Bond or Bonds, in authorized
denominations, of equal aggregate principal amount. Any
such transfer shall be subject to the terms and
conditions specified in the Mortgage and in the Thirty-
Sixth Supplemental Indenture.
[End of 2016 PC Bond Form]
Section 4. Until the 2016 PC Bond in definitive form is
ready for delivery, the Company may execute, and upon its
request in writing the Trustee shall authenticate and
deliver, in lieu thereof, a fully registered 2016 PC Bond
in temporary form, as provided in Section 15 of the
Original Mortgage. Such bond may, in lieu of the
statement of the specific redemption prices required to
be set forth in such bond in definitive form, include a
reference to this Thirty-Sixth Supplemental Indenture for
a statement of such redemption prices.
Section 5. The Company covenants and agrees that it will
duly and punctually pay to the holder of the 2016 PC Bond
the principal thereof, premium, if any, and interest on
said bond at the dates and place and in the manner
mentioned therein; provided, however, that:
(a) The obligation of the Company to pay the
principal of, and premium, if any, and interest on the
2016 PC Bond shall be discharged to the extent that any
moneys in the Series 1993A Bond Account within the Bond
Fund created under and pursuant to the City Indenture are
available for the payment of the principal of, or
premium, if any, or interest on the Series 1993A Bonds
and are directed by the Company to be applied to the
payment thereof in the manner provided in the City
Indenture on or prior to the dates on which the Company
is required to pay the principal of, or premium, if any,
or interest on the 2016 PC Bond.
(b) Except as otherwise provided in this Section 5,
the principal amount of any Series 1993A Bond acquired by
the Company and delivered to the City Trustee, or
acquired by the City Trustee and cancelled, shall be
credited against the obligation of the Company to pay the
principal of the 2016 PC Bond.
As the principal of, premium, if any, and interest on the
2016 PC Bond is paid or deemed paid in full, and upon its
receipt by the Company, such bond shall be delivered to
the Trustee for cancellation. The Company shall promptly
inform the Trustee of all payments made and credits
availed of with respect to its obligations on the 2016 PC
Bond. The Trustee shall not be required to recognize any
payment made or credit availed of with respect to any
2016 PC Bond unless it has received (a) the bond for
cancellation by it, or (b) a certificate signed by a duly
authorized officer of the City Trustee specifying the
amount of such payment or credit and the principal amount
of the 2016 PC Bond with respect to which the payment or
credit was applied. In the absence of receipt by the
Trustee of any 2016 PC Bond, any such certificate shall
be controlling and conclusive.
Section 6. The covenant of the Company to make annual
payments to the Trustee for a Maintenance and Improvement
Fund as contained in Section 41 of the Original Mortgage
and in the first twenty-four Supplemental Indentures to
the Original Mortgage creating the several series of
First Mortgage Bonds presently outstanding under such
Supplemental Indentures shall not apply to nor be for the
benefit of the 2016 PC Bond, and the Company reserves the
right, without any consent of, or other action by, the
holder of the 2016 PC Bond, to amend, modify or delete
the provisions of the Mortgage relating to such
Maintenance and Improvement Fund and by acceptance of the
2016 PC Bond the holder thereof waives any right or
privilege so to consent or take any other action with
respect thereto.
Section 7. The Company covenants that, so long as the
2016 PC Bond shall remain outstanding, it will comply
with all of the provisions of Section 47 of the Original
Mortgage, including the provisions with respect to
limitations on dividends and distributions and the
purchase and redemption of stock.
Section 8. The Trustee hereby accepts the trusts herein
declared, provided and created and agrees to perform the
same upon the terms and conditions herein and in the
Mortgage set forth and upon the following terms and
conditions:
The recitals contained herein and in the bonds shall be
taken as the statements of the Company and the Trustee
assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the
validity or adequacy of the security afforded hereby, or
as to the validity of this Thirty-Sixth Supplemental
Indenture or of the 2016 PC Bond issued hereunder.
Section 9. Whenever in this Thirty-Sixth Supplemental
Indenture either of the parties hereto is named or
referred to, this shall, subject to the provisions of
Article XVII of the Original Mortgage, be deemed to
include the successors or assigns of such party, and all
the covenants and agreements in this Thirty-Sixth
Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the benefit of
the respective successors and assigns of such parties,
whether so expressed or not.
Section 10. Nothing in this Thirty-Sixth Supplemental
Indenture expressed or implied, is intended or shall be
construed to confer upon, or to give to, any person, co-
partnership or corporation, other than the parties hereto
and the holders of the bonds and coupons outstanding
under the Mortgage, any right, remedy, or claim under or
by reason of this Thirty-Sixth Supplemental Indenture or
any covenant, condition or stipulation hereof; and all
the covenants, conditions, stipulations, promises and
agreements in this Thirty-Sixth Supplemental Indenture
contained by or on behalf of the Company shall be for the
sole and exclusive benefit of the parties hereto and of
the holders of the bonds and of the coupons outstanding
under the Mortgage.
Section 11. The Company covenants that all of the terms,
provisions and conditions of the Mortgage shall be
applicable to the 2016 PC Bond issued hereunder, except
as herein otherwise provided and except insofar as the
same may be inconsistent with the provisions of this
Thirty-Sixth Supplemental Indenture.
Section 12. This Thirty-Sixth Supplemental Indenture is
dated as of April 1, 1993, although executed and
delivered on the date of the acknowledgment hereof by the
Trustee; and shall be simultaneously executed and
delivered in several counterparts, and all such
counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
In Witness Whereof, Indianapolis Power & Light Company,
party of the first part, has caused its corporate name to
be hereunto affixed and this instrument to be signed and
acknowledged by its President or a Vice-President, and
its corporate seal to be hereto affixed and attested by
its Secretary or an Assistant Secretary, for and in its
behalf, and American National Bank and Trust Company of
Chicago, party of the second part, as Trustee, has caused
its corporate name to be hereunto affixed and this
instrument to be signed and acknowledged by one of its
Vice-Presidents, and its corporate seal to be hereto
affixed and attested by one of its Assistant Secretaries,
all as of the day, month and year first above written.
Indianapolis Power & Light Company
Attest: By /s/ Marcus E. Woods
Marcus E. Woods,
Vice-President
/s/ Clark L. Snyder
Clark L. Snyder,
Assistant Secretary
(Seal)
American National Bank and Trust
Company of Chicago
Attest: By /s/ Richard Y. Guthrie
Richard Y. Guthrie,
Senior Vice-President
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary
(Seal)
State of Indiana )
) ss.:
County of Marion )
On this 5th day of April, in the year 1993, before me, a
Notary Public in and for the County and State aforesaid,
personally came Marcus E. Woods, Vice-President, and
Clark L. Snyder, Assistant Secretary, of Indianapolis
Power & Light Company, one of the corporations described
in and which executed the foregoing instrument, to me
personally known and known to me personally to be such
Vice-President, and Assistant Secretary, respectively.
Said Marcus E. Woods and Clark L. Snyder being by me
severally duly sworn did depose and say that the said
Marcus E. Woods resides in Hendricks County, Indiana and
the said Clark L. Snyder resides in Marion County,
Indiana; that said Marcus E. Woods is Vice-President and
said Clark L. Snyder is Assistant Secretary of said
Indianapolis Power & Light Company; that each of them
knows the corporate seal of said corporation; that the
seal affixed to said instrument and bearing the name of
said corporation is such corporate seal; that is was so
affixed by order of the Board of Directors of said
corporation; and that each of them signed his name
thereto by like order; and each of them acknowledged the
execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and
the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 5th day of April, 1993.
/s/ Gloria K. Bryant
Gloria K. Bryant,
Notary Public
My Commission Expires:
June 11, 1995
My County of Residence is:
Marion
(Notarial Seal)
State of Illinois )
) ss.:
County of Cook )
On this 2nd day of April, in the year 1993, before me, a
Notary Public in and for the County and State aforesaid,
personally came Richard Y. Guthrie, Senior Vice-
President, and Robert M. Selangowski, Assistant
Secretary, of American National Bank and Trust Company of
Chicago, one of the corporations described in and which
executed the foregoing instrument, to me personally known
and known to me personally to be such Senior Vice-
President and Assistant Secretary, respectively. Said
Richard Y. Guthrie and Robert M. Selangowski, being by me
severally sworn did depose and say that the said Richard
Y. Guthrie resides in Evanston, Illinois, and that the
said Robert M. Selangowski resides in Lansing, Illinois;
that said Richard Y. Guthrie is Senior Vice-President and
said Robert M. Selangowski is Assistant Secretary of said
American National Bank and Trust Company of Chicago; that
each of them knows the corporate seal of said
corporation; that the seal affixed to said instrument and
bearing the name of said corporation is such corporate
seal; that it was so affixed by authority of the Board of
Directors of said corporation; that each of them signed
his name thereto by like authority; and each of them
acknowledged the execution of said instrument on behalf
of said corporation to be his free and voluntary act and
deed and the free and voluntary act and deed of said
corporation, for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 2nd day of April, 1993.
/s/ Bernadette G. Janairo
Bernadette G. Janairo,
Notary Public
My Commission Expires: May 22, 1994
My County of Residence is:
Cook
(Notarial Seal)
This instrument was prepared by
Marcus E. Woods,
Attorney at Law
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
TRUSTEE
---------------
THIRTY-SEVENTH SUPPLEMENTAL INDENTURE
---------------
DATED AS OF OCTOBER 1, 1993
ESTABLISHING FIRST MORTGAGE BONDS,
5.40% SERIES, DUE 2017
TABLE OF CONTENTS*
of
THIRTY-SEVENTH SUPPLEMENTAL INDENTURE
of
INDIANAPOLIS POWER & LIGHT COMPANY
PAGE
----
Parties.................................................. 1
Recitals................................................. 1
Section 1 Granting clauses............................. 3
Part I Electric Distributing Systems..... 4
Part II Steam and Hot Water Distributing
Systems......................... 5
Part III Indeterminate Permits and
Franchises...................... 5
Part IV Other Property.................... 5
General and after-acquired title............. 6
Section 2 Designation of Thirty-Fifth series of bonds
and kind and denominations thereof......... 7
Designation of Company or American National
Bank and Trust Company of Chicago as paying
agent...................................... 7
Purpose of bonds............................. 7
Redemption of bonds.......................... 8
Exchange of bonds............................ 12
Transfer of bonds............................ 13
Series limited to $24,650,000................ 13
Section 3 Form of fully registered bond................ 13
Form of Trustee's certificate on bonds....... 16
Section 4 Temporary bonds.............................. 19
Section 5 Payment of principal and interest; credits... 19
Section 6 Annual Payments for Maintenance and Improvement
Fund....................................... 20
Section 7 Compliance with Section 47 of Original Mortgage
with respect to dividend restrictions...... 20
Section 8 Acceptance of trusts by Trustee and conditions
of acceptance.............................. 20
_________________________
*Table of Contents is not part of the Thirty-Seventh
Supplemental Indenture and should not be considered such.
It is included herein only for purposes of convenient
reference.
PAGE
----
Section 9 Successors and assigns....................... 20
Section 10 Limitation of rights hereunder............... 21
Section 11 Compliance with terms, provisions and
conditions of Mortgage..................... 21
Section 12 Execution in counterparts.................... 21
Testimonium.............................................. 22
Signatures and Seals..................................... 22
Acknowledgements......................................... 23
ii
THIS THIRTY-SEVENTH SUPPLEMENTAL INDENTURE, dated as of
October 1, 1993, between INDIANAPOLIS POWER & LIGHT
COMPANY, a corporation of the State of Indiana,
hereinafter sometimes called the "Company," party of the
first part, and AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, a national banking association, as Trustee,
hereinafter sometimes called the "Trustee," party of the
second part;
WHEREAS, the Company by a Mortgage and Deed of Trust
(hereinafter sometimes called the "Original Mortgage"
when referred to as existing prior to any supplement
thereto or modification thereof, and the "Mortgage" when
referred to as now or heretofore supplemented and
modified) dated as of May 1, 1940, made to said American
National Bank and Trust Company of Chicago, as Trustee,
to secure the payment of the bonds issued from time to
time under the Mortgage for the purposes of and subject
to the limitations specified in the Mortgage, and to
secure the performance of the covenants therein
contained, conveyed to the Trustee thereunder upon
certain trusts, terms and conditions, and with and
subject to certain provisos and covenants therein
contained, all and singular the property, rights and
franchises which the Company then owned or should
thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any
indenture supplemental thereto, to which Mortgage
reference is hereby made for greater certainty; and
WHEREAS, the Original Mortgage has been supplemented and
modified by supplemental indentures dated as of May 1,
1942, as of February 1, 1948, as of April 1, 1949, as of
October 1, 1949, as of February 1, 1951, as of March 1,
1953, as of June 1, 1956, as of March 1, 1958, as of
October 1, 1960, as of August 1, 1964, as of April 1,
1966, as of May 1, 1967, as of May 1, 1968, as of October
1, 1970, as of March 1, 1972, as of March 15, 1973, as of
February 15, 1974, as of August 15, 1974, as of September
15, 1975, as of June 1, 1976, as of July 1, 1976, as of
August 1, 1977, as of September 1, 1978, as of August 1,
1981, as of November 1, 1983, as of November 1, 1984, as
of December 1, 1984, as of September 1, 1985, as of
October 1, 1986, as of June 1, 1989, as of August 1,
1989, as of October 15, 1991, as of August 1, 1992 and
as of April 1, 1993;
WHEREAS, Section 8 of the Original Mortgage provides,
among other things, that the form of each series of bonds
(other than the initial issue of bonds) issued thereunder
shall be established by an indenture supplemental thereto
authorized by resolution of the Board of Directors of the
Company, and that the form of each series, as established
by the Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof,
and may also contain such other provisions as the Board
of Directors may, in its discretion, cause to be inserted
therein expressing or referring to the terms and conditions
upon which such bonds are to be issued and secured under the
Original Mortgage or any indenture supplemental thereto
or in modification thereof; and
WHEREAS, the Company has entered into a Loan Agreement,
dated as of October 1, 1993 (hereinafter called the "Loan
Agreement") with the City of Petersburg, Indiana (the
"City"), in order to obtain funds for the refunding of
the aggregate principal amount of Twenty Four Million Six
Hundred Fifty Thousand Dollars ($24,650,000) of the
City's Pollution Control Revenue Bonds, Series 1977
(Indianapolis Power & Light Company Project) issued by
the City pursuant to a related loan agreement to pay a
portion of the cost of acquisition, construction,
installation and equipping by the Company of certain
pollution control facilities (the "Facilities"), and
pursuant to the Loan Agreement the Company has agreed to
issue a series of its bonds under the Mortgage and this
Thirty-Seventh Supplemental Indenture in order to
evidence and secure its indebtedness under the Loan
Agreement; and
WHEREAS, the Company now desires to provide for the
establishment, execution, authentication and delivery
under the Mortgage of bonds of a series to be known as
its "First Mortgage Bonds, 5.40% Series, due 2017" (the
bonds of said series being hereinafter sometimes referred
to as the "2017 PC Bond"), limited to the aggregate
principal amount of Twenty Four Million Six Hundred Fifty
Thousnd Dollars ($24,650,000); and
WHEREAS, all things necessary to make the 2017 PC Bond
hereinafter described, when duly executed by the Company
and authenticated and delivered by the Trustee, a valid,
binding and legal obligation of the Company, and to make
this Thirty-Seventh Supplemental Indenture a valid and
binding agreement supplemental to the Original Mortgage,
have been done and performed; and
WHEREAS, the execution and delivery by the Company of
this Thirty-Seventh Supplemental Indenture, and the terms
of the 2017 PC Bond, have been duly authorized by the
Board of Directors of the Company by appropriate
resolutions of said Board; and
WHEREAS, it is provided in and by the Original Mortgage
that the Company will execute and deliver such further
instruments and do such further acts as may be necessary
or proper to carry out more effectually the purposes of
the Mortgage, and to make subject to the lien thereof any
property thereafter acquired and intended to be subject
to the lien thereof; and
WHEREAS, the Company has, since the date of execution and
delivery of the Original Mortgage, purchased and acquired
property and desires by this Thirty-Seventh Supplemental
Indenture specifically to convey to the Trustee such
property for the better protection and security of the
bonds issued and to be issued under the Original
Mortgage, or any indenture supplemental thereto;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the acceptance or
purchase of the 2017 PC Bond by the registered owners
thereof, and of the sum of one dollar, lawful money of
the United States of America, to the Company duly paid by
the Trustee at or before the execution and delivery of
this Thirty-Seventh Supplemental Indenture, the receipt
whereof is hereby acknowledged, the Company and the
Trustee, respectively, have entered into, executed and
delivered this Thirty-Seventh Supplemental Indenture, for
the uses and purposes hereinafter expressed, that is to
say:
Section 1. The Company has granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, and by these presents
does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm
(subject, however, to permitted encumbrances as defined
in the Original Mortgage), unto said American National
Bank and Trust Company of Chicago, as Trustee, as herein
provided, and its successors in the trusts declared in
the Original Mortgage and herein, all of the property,
real, personal and mixed, tangible and intangible, of
every kind, character and description which the Company
has acquired since the execution and delivery of the
Original Mortgage and now owns (except property, rights
and assets of a character similar to that excluded from
the lien and operation of the Mortgage by the Granting
Clauses of the Original Mortgage, which property, rights
and assets are excluded from the lien and operation of
the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality
of the foregoing, the following described property
situated within the State of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired
by it after May 1, 1940, the date of the Original
Mortgage, and located in the Counties of Bartholomew,
Boone, Daviess, Greene, Hamilton, Hancock, Hendricks,
Johnson, Knox, Madison, Marion, Monroe, Morgan, Owen,
Pike, Putnam, Shelby and Sullivan, State of Indiana; and
any additions to or extensions of any such systems,
together with the buildings, erections, structures,
transmission lines, power stations, sub-stations,
engines, boilers, condensers, pumps, turbines, machinery,
tools, conduits, manholes, insulators, dynamos, motors,
lamps, cables, wires, poles, towers, cross-arms, piers,
abutments, switchboard equipment, meters, appliances,
instruments, apparatus, appurtenances, maps, records,
ledgers, contracts, facilities and other property or
equipment used or provided for use in connection with the
construction, maintenance, repair and operation thereof;
together also with all of the rights, privileges, rights-
of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits and easements of the
Company in respect of the construction, maintenance,
repair and operation of said systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired
by the Company after May 1, 1940, the date of the
Original Mortgage, and located in the City of
Indianapolis, Marion County, Indiana, and any additions
to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters,
engines, tanks, pipe lines, mains, connections, service
pipes, meters, tools, instruments, appliances, apparatus,
facilities, machinery and other property and equipment
used or provided for use in the construction,
maintenance, repair and operation thereof; and together
also with all of the rights, privileges, rights-of-way,
franchises, licenses, grants, liberties, immunities,
ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and
operation of said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances,
licenses, and other authorizations by or from any state,
county, municipality, or other governmental authority,
acquired by the Company after May 1, 1940, the date of
the Original Mortgage, including particularly, but not
limited to, any indeterminate permits
under the Public Service Commission Act of the State of
Indiana, and all Acts amendatory thereof and supplemental
thereto, and all right, title and interest therein now
owned by the Company, and all renewals, extensions and
modifications of said indeterminate permits, franchises,
ordinances, licenses, and other authorizations, and of
the indeterminate permits, franchises, ordinances,
licenses, and other authorizations referred to in Part
VII of the Granting Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed
(except any in the Mortgage expressly excepted), now
owned by the Company and wheresoever situated, including
(without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the
foregoing or of any general description contained in the
Mortgages) all lands, flowage rights, water rights,
flumes, raceways, dams, rights-of-way and roads; all
plants for the generation of electricity by water, steam
and/or other power, power houses, telephone systems,
water systems, steam heat and power plants, hot water
plants, sub-stations, transmission lines, distribution
systems, bridges, culverts and tracts; all offices,
buildings and structures and the equipment thereof; all
machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors;
all appliances whether electrical, gas or mechanical,
conduits, cables and lines; all pipes whether for water,
steam heat and power, or other purposes; all mains and
pipes, service pipes, fittings, valves and connections,
poles, wires, tools, implements, apparatus, furniture and
chattels; all municipal franchises, indeterminate
permits, and other permits; all lines for the
transportation, transmission and/or distribution of
electric current, steam heat and power or water for any
purpose, including towers, poles, wires, cables, pipes,
conduits and all apparatus for use in connection
therewith; all real estate, lands, leases, leaseholds;
all contracts, whether heat, light, power, water or
street lighting contracts; all easements, servitudes,
licenses, permits, rights, powers, franchises,
privileges, rights-of-way and other rights in or relating
to real estate or the occupancy of the same and (except
as hereinafter or in the Mortgage expressly excepted) all
the right, title and interest of the Company in and to
all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described or referred to;
Together with all and singular the tenements,
hereditaments and appurtenances belonging or in anywise
appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 64
of the Original Mortgage), the tolls, rents, revenues,
issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the
aforesaid property, indeterminate permits, franchises,
ordinances, licenses and other authorizations and every
part and parcel thereof.
Section 2. There shall be and is hereby established a
series of bonds, limited in aggregate principal amount to
Twenty Four Million Six Hundred Fifty Thousand Dollars
($24,650,000) to be issued under and secured by the
Mortgage, to be designated "5.40% Series, due 2017", each
of which shall also bear the descriptive title "First
Mortgage Bonds"; said bonds shall mature on August 1,
2017, and shall be issued only as fully registered bonds
without coupons in the denomination of five thousand
dollars and any larger denomination which is a whole
multiple of five thousand dollars; they shall bear
interest from the beginning of the current interest
period during which each bond is dated, at the rate per
annum designated in the title thereof, payable semi-
annually, on February 1 and August 1 of each year (except
that the first interest payment thereon shall be made
February 1, 1994 for the four-month period from October
1, 1993 through January 31, 1994); and the principal of,
premium, if any, and interest on said bond shall be
payable in lawful money of the United States of America
at the office of the Company in the City of Indianapolis,
Indiana, or, if no such office is maintained, at American
National Bank and Trust Company of Chicago, which is
hereby designated and appointed the office and agency of
the Company in the City of Chicago, Illinois, for the
payment of the principal of, premium, if any, and
interest on the 2017 PC Bond, if necessary, and for the
registration, transfer and exchange of such bond as
hereinafter provided; all reference herein to the office
or agency of the Company in the City of Chicago,
Illinois, for the payment of the principal of, premium,
if any, and interest on the 2017 PC Bond, or the
registration, transfer or exchange thereof, being to
American National Bank and Trust Company of Chicago. In
event of the resignation or inability to act of American
National Bank and Trust Company of Chicago, then a
successor agent for all such purposes in the City of
Chicago, Illinois, shall be appointed by the Board of
Directors of the Company.
The 2017 PC Bond shall be dated as of the date of
authentication thereof, except as otherwise provided in
Section 10 of the Original Mortgage.
The 2017 PC Bond will be issued to evidence and secure a
loan to the Company by the City pursuant to the Loan
Agreement of certain funds to be acquired by the City
through the issuance of City of Petersburg, Indiana,
Pollution Control Refunding Revenue Bonds, Series 1993B
(Indianapolis Power & Light Company Project)(the "Series
1993B Bonds"), authenticated and delivered under and
pursuant to an Indenture of Trust dated as of October 1,
1993 (hereinafter called the "City Indenture"), by and
between the City and National City Bank, Indiana, as
Trustee (the "City Trustee"). Pursuant to the City's
pledge and assignment of the Loan Agreement, as set forth
in the City Indenture, the 2017 PC Bond shall be issued
to the City and assigned to the City Trustee. All of the
proceeds of the Series 1993B Bonds will be used for the
refunding of the aggregate principal amount of Twenty
Four Million Six Hundred Fifty Thousand Dollars
($24,650,000) of the City's Pollution Control Revenue
Bonds, Series 1977 (Indianapolis Power & Light Company
Project) issued by the City pursuant to applicable loan
agreement.
Upon the notice and in the manner and with the effect
provided in this Section 2, the 2017 PC Bond shall be
redeemable prior to the maturity thereof under any one or
more of the following circumstances:
(a) In whole, at the option of the Company, if the
Facilities or Unit 3 of the Petersburg Generating Station
serviced by the Facilities shall have been damaged or
destroyed (i) to such extent that they cannot be
reasonably expected, in the opinion of the Company, to be
restored within a period of six (6) months to the
condition thereof immediately preceding such damage or
destruction, or (ii) to such extent that the Company, in
its reasonable opinion, is thereby prevented from
carrying on its normal operations for a period of six (6)
months or more, or (iii) to such extent that the
restoration thereof would not be, taking into
consideration the net proceeds of any insurance payable
as a result of such damage or destruction, economic in
the reasonable opinion of the Company.
(b) In whole, at the option of the Company, if title to,
or the temporary use of, all or substantially all of the
Facilities or Unit 3 of the Petersburg Generation Station
serviced by the Facilities, shall have been taken, under
the exercise of the power of eminent domain, or should
any governmental body or agency exercise any right which
it may have to purchase or designate a purchaser of the
same, or should such property be sold to any governmental
body or agency so that the result of such taking or
takings is that (i) the Company, in its reasonable
opinion, is thereby prevented from carrying on its normal
operations of either the Facilities or such Unit 3 for a
period of six (6) months or more, (ii) the restoration
required as a result of the taking cannot be reasonably
expected, in the opinion of the Company, to be completed
in a period of six (6) months, or (iii) the restoration
thereof, taking into consideration the net proceeds from
such eminent domain award, would not be economic in the
reasonable opinion of the Company.
(c) In whole, at the option of the Company, if, as a
result of any changes in the Constitution or law of the
State of Indiana or the Constitution or law of the United
States of America or of legislative or administrative
action (whether state or federal) or by final decree,
judgment or order of any court or administrative body
(whether state or federal) entered after the contest
thereof by the Company in good faith or the decision of
the Company not to contest the same, the Loan Agreement
shall, in the reasonable opinion of counsel for the
Company, have become void or unenforceable or impossible
of performance in accordance with the intent and purpose
of the parties as expressed in the Loan Agreement; or
unreasonable burdens or excessive liabilities shall, in
the reasonable opinion of the Company, have been imposed
upon the City or the Company, with respect to the
Facilities or operation thereof, including without
limitation federal, state or other ad valorem, property,
income or other taxes not being imposed on the date of
the Loan Agreement other than ad valorem taxes presently
levied upon privately owned property used for the same
general purpose as the Facilities.
(d) In whole, at the option of the Company, if changes
in the economic availability of raw materials, operating
supplies or facilities necessary for the operation of the
Facilities or the operation of Unit 3 of the Petersburg
Generating Station serviced by the Facilities shall have
occurred or technological or other changes shall have
occurred which render the Facilities or said Unit 3
uneconomic for use in the reasonable opinion of the
Company.
(e) In part, at the option of the Company, to the extent
of net proceeds received from any condemnation award,
taking or sale as stated herein, if title to, or the
temporary use of any portion of the Facilities shall have
been taken under the exercise of the power of eminent
domain, or should any governmental body or agency
exercise any right it may have to purchase or designate a
purchaser of the same, or should such property be sold to
any governmental body or agency; provided the Company
shall furnish to the City and the City Trustee a
certificate of an Independent Engineer (as defined in the
Loan Agreement) selected by the Company stating (i) that
the property forming the part of the Facilities that was
taken by such condemnation, taking or sale is not
essential to the character or significance of the
Facilities, or (ii) that the Facilities have been
restored to a condition substantially equivalent to their
condition prior to the taking by such condemnation,
taking or sale proceedings, or (iii) that improvements
have been acquired which are suitable for the operation
of the Facilities.
(f) In the event all or substantially all of the
mortgaged and pledged property under the Mortgage, or all
or substantially all such property used in the business
of generating, manufacturing, transporting, transmitting,
distributing or supplying electricity, should be taken by
exercise of the power of eminent domain, or should any
governmental body or agency exercise any right which it
may have to purchase or designate a purchaser of the
same, or should such property be sold to any governmental
body or agency, the Company shall be obligated to redeem
the 2017 PC Bond outstanding as promptly as possible in
accordance with paragraph B of Section 69 of the Original
Mortgage.
(g) In the event that the Company is notified by the
City Trustee that (i) an event of default under the City
Indenture has occurred and is continuing, and (ii) the
City Trustee has declared the principal of all the Series
1993B Bonds then outstanding immediately due and payable
pursuant to the City Indenture, the Company shall call
for redemption, on a redemption date selected by it not
later than thirty (30) days following the date on which
such notice is mailed, the 2017 PC Bond outstanding, and
shall on such redemption date redeem the same; provided,
however, that such requirement of redemption shall be
deemed waived, if prior to the date fixed for such
redemption of the 2017 PC Bond (x) such event of default
is waived or cured as set forth in the City Indenture, or
(y) there shall have occurred any completed default (as
defined in the Mortgage) which affects any bond of any
series outstanding under the Mortgage and which completed
default has not been cured and made good prior to such
redemption date, it being the intent of this proviso
that, in lieu of such right to redemption, the holder of
the 2017 PC Bond shall be entitled only to such rights as
are available to the holders of bonds of any other series
outstanding under the Mortgage in the event of such
completed default; and in case of any subsequent
occurrence or continuance of the events described in (i)
and (ii) of this Section 2(g), the Company shall have the
same obligation (subject to the same proviso) to redeem
the 2017 PC Bond.
(h) In the event the City Trustee notifies the Company
and the City that the interest payable on the Series
1993B Bonds held by persons other than a "substantial
user" or a "related person" as those terms are used in
Section 147(a)(2) of the Internal Revenue code of 1986,
as amended, has been determined by a court of competent
jurisdiction or a formal ruling of the Internal Revenue
Service to be subject to federal income taxation by
reason of a breach by the Company of any covenant,
agreement or representation in the Loan Agreement, the
Company shall call the 2017 PC Bond then outstanding to
be redeemed on the next succeeding interest payment date
within one hundred eighty (180) days after the date of
such notice; provided, however, that such requirement of
redemption, whether in whole or in part shall be deemed
waived if, prior to the date fixed for redemption of the
2017 PC Bond pursuant to this Section 2(h), there shall
have occurred any completed default (as defined in the
Mortgage) which affects any bond of any series
outstanding under the Mortgage and which completed
default has not been cured and made good prior to such
redemption date, it being the intent of this proviso
that, in lieu of such right to redemption, the holder of
the 2017 PC Bond shall be entitled only to such rights as
are available to the holders of bonds of any other series
outstanding under the Mortgage in the event of such
completed default; but when any such completed default
shall have been cured and made good, if interest on the
Series 1993B Bonds shall still be taxable as described
above, the Company shall have the same obligation
(subject to the same proviso) to redeem the 2017 PC Bond
on the next succeeding interest payment date within one
hundred eighty (180) days after the curing and making
good of such completed default; provided further, that
the Company may call for redemption such portion of the
2017 PC Bond, which in the written opinion of an attorney
or firm of attorneys of nationally recognized standing on
the subject of municipal bonds, would allow the City
Trustee to redeem the Series 1993B Bonds in part, which
redemption would have the result that the interest
payable on the Series 1993B Bonds remaining outstanding
after such redemption in part would not be subject to
federal income taxation in the hands of persons other
than a "substantial user" or a "related person" as those
terms are used in Section 147(a)(2) of the Internal
Revenue Code of 1986, as amended.
In case of redemption of 2017 PC Bond in whole for the
purpose of prepayment under the Loan Agreement pursuant
to subsections (a), (b), (c), (d), (f), (g), or (h)
above, the amounts payable upon redemption of 2017 PC
Bond shall be a sum sufficient, together with other funds
deposited with the City Trustee and available for such
purpose, to pay the principal of and interest on the 2017
PC Bond then outstanding and to pay all reasonable and
necessary fees and expenses of the City Trustee accrued
and to accrue through final payment of the 2017 PC Bond.
In case of redemption in part pursuant to (e) or (h)
above, the amount payable by the Company under this
Thirty-Seventh Supplemental Indenture, the Loan Agreement
and the 2017 PC Bond shall be a sum sufficient, together
with other funds deposited with the Trustee and available
for such purpose, to pay the principal of and interest on
the 2017 PC Bond so to be redeemed, which sum together
with other funds deposited with the City Trustee and
available for such purpose shall be sufficient to pay the
principal of, premium, if any, and interest on the Series
1993B Bonds and to pay all reasonable and necessary fees
and expenses of the City Trustee accrued and to accrue
through such partial prepayment.
The 2017 PC Bond and the Series 1993B Bonds shall be
redeemable at any time within one hundred eighty (180)
days following the event or events described as giving
rise to an option of the Company to redeem them in
subsections (a), (b), (c), (d) or (e) above.
To exercise any of the options granted to redeem the 2017
PC Bond in whole or in part or to comply with any
obligations to redeem the 2017 PC Bond in whole or in
part imposed in this Section 2, the Company shall give
written notice of the date of redemption to the City
Trustee, which date shall be not less than thirty (30)
days nor more than ninety (90) days from the date the
notice is mailed. No further notice, by publication or
otherwise, shall be required for redemption of the 2017
PC Bond, and the requirements of Section 59 of the
Mortgage for notice by newspaper publication shall not
apply to the 2017 PC Bond.
At the option of the holder, the 2017 PC Bond, upon
surrender thereof at the office or agency of the Company
in Chicago, Illinois, together with a written instrument
of transfer in form approved by the Company duly executed
by the holder or by his duly authorized attorney, shall
be exchangeable for a like aggregate principal amount of
fully registered bonds of the same series of other
authorized denominations.
The 2017 PC Bond will be nontransferable except to the
City Trustee and successors thereto, if any, and to the
Company. To the extent that it is transferable, it is
transferable by the registered holder thereof, in person
or by attorney duly authorized in writing, on the books
of the Company at the office or agency of the Company in
the City of Chicago, Illinois, upon surrender thereof for
cancellation at said office and upon presentation of a
written instrument of transfer duly executed. Thereupon,
the Company shall issue in the name of the transferee,
and the Trustee shall authenticate and deliver, a new
registered 2017 PC Bond or Bonds, in authorized
denominations, of equal aggregate principal amount. Any
such transfer shall be subject to the terms and
conditions specified in the Mortgage and in this Thirty-
Seventh Supplemental Indenture.
The Company shall not be required to transfer or exchange
the 2017 PC Bond for a period of ten (10) days next
preceding any interest payment date of such bond.
Except as set forth herein, no charge shall be made upon
any transfer or exchange of any of the 2017 PC Bond other
than for any tax or taxes or other governmental charge
required to be paid by the Company.
The 2017 PC Bond shall be limited to an aggregate
principal amount of Twenty Four Million Six Hundred Fifty
Thousand Dollars ($24,650,000) and shall be issued under
the provisions of Article VII of the Original Mortgage.
Section 3. The 2017 PC Bond, and the Trustee's
Certificate to be endorsed thereon, shall be in the
following forms, respectively:
[form of face of 2017 PC Bond]
This First Mortgage Bond, 5.40% Series, due 2017
(hereinafter called the "2017 PC Bond") is not
transferable except to a successor trustee under the
Indenture of Trust dated as of October 1, 1993, between
the City of Petersburg, Indiana and National City Bank,
Indiana, as the Trustee, or to Indianapolis Power & Light
Company.
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 5.40% Series, Due 2017
Due August 1, 2017
No. $
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the
State of Indiana (hereinafter called the "Company"), for
value received, hereby promises to pay to National City
Bank, Indiana, as the Trustee (hereinafter called the
"City Trustee") under the Indenture of Trust between the
City of Petersburg, Indiana (the "City") and the City
Trustee, dated as of October 1, 1993, (the "City
Indenture") or registered assigns, on August 1, 2017, at
the office of the Company, in the City of Indianapolis,
State of Indiana, or if no such office is maintained at
the time by the Company, then at the office or agency of
the Company for such purpose in the City of Chicago,
State of Illinois, Twenty Four Million Six Hundred Fifty
Thousand Dollars ($24,650,000) in lawful money of the
United States of America, and to pay to the registered
owner hereof interest thereon from the first day of
February or the first day of August next preceding the
date of this 2017 PC Bond (except that the first interest
payment hereunder shall be made February 1, 1994 for the
four-month period from October 1, 1993 through January
31, 1994), at the rate of five and forty hundredths per
centum (5.40%) per annum in like lawful money at said
office or agency, on February 1 and August 1 in each
year, until the Company's obligation with respect to the
payment of such principal shall have been discharged.
The interest payable hereunder on February 1 or August 1
will be paid to the registered owner of this 2017 PC Bond
at or before the close of business on such dates, or if
such date shall be a Saturday, Sunday, holiday or a day
on which banking institutions in the City of Indianapolis
or the city of any paying agents are authorized by law to
close, on or before the close of business on the next
succeeding business day on which such banking
institutions are open for business.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS 2017
PC BOND SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH IN THIS PLACE.
No recourse shall be had for the payment of the principal
of or interest on this 2017 PC Bond against any
incorporator or any past, present or future subscriber to
the capital stock, stockholder, officer or director of
the Company or of any predecessor or successor
corporation, as such, either directly or through the
Company or any predecessor or successor corporation,
under any rule of law, statute, or constitution or by the
enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and
released by the terms of the Mortgage, as herein defined.
This 2017 PC Bond shall not become obligatory until
American National Bank and Trust Company of Chicago, the
Trustee under the Mortgage, as herein defined, or its
successor thereunder, shall have signed the form of
certificate endorsed hereon.
IN WITNESS WHEREOF, Indianapolis Power & Light Company
has caused this 2017 PC Bond to be signed in its name by
its President or one of its Vice-Presidents, by his
signature or a facsimile thereof, and its corporate seal
to be affixed hereon, attested by its Secretary or one of
its Assistant Secretaries, by his signature or a
facsimile thereof.
INDIANAPOLIS POWER & LIGHT COMPANY
Dated: By_______________________________________
Vice-President
Attest:
By_____________________________
Secretary
[Form of Trustee's Certificate on 2017 PC Bond]
Trustee's Certificate
This 2017 PC Bond is one of the bonds, of the series
herein designated, provided for in the within-mentioned
Mortgage and Thirty-Seventh Supplemental Indenture
thereto.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
Trustee
By______________________________________
Authorized Signature
[Form of Reverse Side of 2017 PC Bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 5.40% Series, due 2017
Due August 1, 2017
This 2017 PC Bond is one of an issue of bonds of the
Company, issuable in series, and is one of a series known
as its First Mortgage Bonds, 5.40% Series, due 2017
(herein called the "2017 PC Bond") limited in aggregate
principal amount to Twenty Four Million Six Hundred Fifty
Thousand Dollars ($24,650,000) and established by a
Thirty-Seventh Supplemental Indenture dated as of October
1, 1993, all bonds of all series issued and to be issued
under and equally secured (except insofar as any sinking
or other fund, established in accordance with the
provisions of the Mortgage hereinafter mentioned, may
afford additional security for the bonds of any
particular series) by a Mortgage and Deed of Trust, dated
as of May 1, 1940, executed by the Company to American
National Bank and Trust Company of Chicago, as the
Trustee (which Mortgage and Deed of Trust as supplemented
and modified by all supplemental indentures thereto is
hereinafter referred to as the "Mortgage"), to which
Mortgage reference is made for a description of the
property mortgaged and pledged, the nature and extent of
the security, the rights of the bearers or registered
owners of the bonds in respect of such security, the
duties and immunities of the Trustee and terms and
conditions upon which the bonds are secured.
This 2017 PC Bond evidences and secures a loan made by
the City to the Company, pursuant to a Loan Agreement,
dated as of October 1, 1993, between the City and the
Company (the "Loan Agreement"). In order to obtain funds
for such loan, the City, contemporaneously with the issue
of this 2017 PC Bond, will issue Twenty Four Million Six
Hundred Fifty Thousand Dollars ($24,650,000) principal
amount of its Pollution Control Refunding Revenue Bonds,
Series 1993B (Indianapolis Power & Light Company Project)
(the "City Bonds") under and pursuant to the City
Indenture. The City Bonds are payable from payments made
by the Company of principal of, premium, if any, and
interest on this 2017 PC Bond and from moneys in the Bond
Fund created under the City Indenture. The obligation of
the Company to pay the principal of, premium, if any, and
interest on this 2017 PC Bond shall be discharged to the
extent that any moneys in said Bond Fund are available
for payments on the City Bonds and are directed by the
Company to be applied thereto, all as provided in the
Thirty-Seventh Supplemental Indenture.
This 2017 PC Bond is not subject to redemption except as
provided in Section 2 of the Thirty-Seventh Supplemental
Indenture, to which reference is made for full
description of redemption provisions.
With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or of the holders of
the bonds and/or coupons and/or the terms and provisions
of the Mortgage and/or any instruments supplemental
thereto may be modified or altered by affirmative vote of
the holders of at least sixty-six and two-thirds per
centum (66-2/3%) in principal amount of the bonds
affected by such modification or alteration then
outstanding under the Mortgage (excluding bonds
disqualified from voting by reason of the Company's
interest therein as provided in the Mortgage); provided
that no such modification or alteration shall permit the
extension of the maturity of the principal of this 2017
PC Bond or the reduction in the rate of interest hereon
or any other modification in the terms of payment of such
principal or interest without the consent of the holder
hereof. The principal hereof may be declared or may
become due and payable prior to the stated date of
maturity hereof, on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence
of a completed default as in the Mortgage provided.
No reference herein to the Mortgage, and no provision of
this 2017 PC Bond or of the Mortgage, shall alter or
impair the obligation of the Company, which is absolute
and unconditional, to pay, subject to the provisions of
the Thirty-Seventh Supplemental Indenture, the principal
of, and premium, if any, and interest on this 2017 PC
Bond at the place, at the respective times and at the
rate and the manner herein prescribed.
This 2017 PC Bond is issuable only in full registered
form without coupons in denominations of Five Thousand
Dollars and any larger denomination which is a whole
multiple of Five Thousand Dollars.
This 2017 PC Bond will be nontransferable except to the
City Trustee and successors thereto, if any, and to the
Company. To the extent that it is transferable, it is
transferable by the registered holder thereof, in person
or by attorney duly authorized in writing, on the books
of the Company at the office or agency of the Company in
the City of Chicago, Illinois, upon surrender thereof for
cancellation at said office and upon presentation of a
written instrument of transfer duly executed. Thereupon,
the Company shall issue in the name of the transferee,
and the Trustee shall authenticate and deliver, a new
registered 2017 PC Bond or Bonds, in authorized
denominations, of equal aggregate principal amount. Any
such transfer shall be subject to the terms and
conditions specified in the Mortgage and in the Thirty-
Seventh Supplemental Indenture.
[End of 2017 PC Bond Form]
Section 4. Until the 2017 PC Bond in definitive form is
ready for delivery, the Company may execute, and upon its
request in writing the Trustee shall authenticate and
deliver, in lieu thereof, fully registered 2017 PC Bond
in temporary form, as provided in Section 15 of the
Original Mortgage. Such bond may, in lieu of the
statement of the specific redemption prices required to
be set forth in such bond in definitive form, include a
reference to this Thirty-Seventh Supplemental Indenture
for a statement of such redemption prices.
Section 5. The Company covenants and agrees that it will
duly and punctually pay to the holder of the 2017 PC Bond
the principal thereof, premium, if any, and interest on
said bond at the dates and place and in the manner
mentioned therein; provided, however, that:
(a) The obligation of the Company to pay the
principal of, and premium, if any, and interest on the
2017 PC Bond shall be discharged to the extent that any
moneys in the Series 1993B Bond Account within the Bond
Fund created under and pursuant to the City Indenture are
available for the payment of the principal of, or
premium, if any, or interest on the Series 1993B Bonds
and are directed by the Company to be applied to the
payment thereof in the manner provided in the City
Indenture on or prior to the dates on which the Company
is required to pay the principal of, or premium, if any,
or interest on the 2017 PC Bond.
(b) Except as otherwise provided in this Section 5,
the principal amount of any Series 1993B Bond acquired by
the Company and delivered to the City Trustee, or
acquired by the City Trustee and cancelled, shall be
credited against the obligation of the Company to pay the
principal of the 2017 PC Bond.
As the principal of, premium, if any, and interest on the
2017 PC Bond is paid or deemed paid in full, and upon its
receipt by the Company, such bond shall be delivered to
the Trustee for cancellation. The Company shall promptly
inform the Trustee of all payments made and credits
availed of with respect to its obligations on the 2017 PC
Bond. The Trustee shall not be required to recognize any
payment made or credit availed of with respect to any
2017 PC Bond unless it has received (a) the bond for
cancellation by it, or (b) a certificate signed by a duly
authorized officer of the City Trustee specifying the
amount of such payment or credit and the principal amount
of the 2017 PC Bond with respect to which the payment or
credit was applied. In the absence of receipt by the
Trustee of any 2017 PC Bond, any such certificate shall
be controlling and conclusive.
Section 6. The covenant of the Company to make annual
payments to the Trustee for a Maintenance and Improvement
Fund as contained in Section 41 of the Original Mortgage
and in the first twenty-four Supplemental Indentures to
the Original Mortgage creating the several series of
First Mortgage Bonds presently outstanding under such
Supplemental Indentures shall not apply to nor be for the
benefit of the 2017 PC Bond, and the Company reserves the
right, without any consent of, or other action by, the
holder of the 2017 PC Bond, to amend, modify or delete
the provisions of the Mortgage relating to such
Maintenance and Improvement Fund and by acceptance of the
2017 PC Bond the holder thereof waives any right or
privilege so to consent or take any other action with
respect thereto.
Section 7. The Company covenants that, so long as the
2017 PC Bond shall remain outstanding, it will comply
with all of the provisions of Section 47 of the Original
Mortgage, including the provisions with respect to
limitations on dividends and distributions and the
purchase and redemption of stock.
Section 8. The Trustee hereby accepts the trusts herein
declared, provided and created and agrees to perform the
same upon the terms and conditions herein and in the
Mortgage set forth and upon the following terms and
conditions:
The recitals contained herein and in the bonds shall be
taken as the statements of the Company and the Trustee
assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the
validity or adequacy of the security afforded hereby, or
as to the validity of this Thirty-Seventh Supplemental
Indenture or of the 2017 PC Bond issued hereunder.
Section 9. Whenever in this Thirty-Seventh Supplemental
Indenture either of the parties hereto is named or
referred to, this shall, subject to the provisions of
Article XVII of the Original Mortgage, be deemed to
include the successors or assigns of such party, and all
the covenants and agreements in this Thirty-Seventh
Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the benefit of
the respective successors and assigns of such parties,
whether so expressed or not.
Section 10. Nothing in this Thirty-Seventh Supplemental
Indenture expressed or implied, is intended or shall be
construed to confer upon, or to give to, any person, co-
partnership or corporation, other than the parties hereto
and the holders of the bonds and coupons outstanding
under the Mortgage, any right, remedy, or claim under or
by reason of this Thirty-Seventh Supplemental Indenture
or any covenant, condition or stipulation hereof; and all
the covenants, conditions, stipulations, promises and
agreements in this Thirty-Seventh Supplemental Indenture
contained by or on behalf of the Company shall be for the
sole and exclusive benefit of the parties hereto and of
the holders of the bonds and of the coupons outstanding
under the Mortgage.
Section 11. The Company covenants that all of the terms,
provisions and conditions of the Mortgage shall be
applicable to the 2017 PC Bond issued hereunder, except
as herein otherwise provided and except insofar as the
same may be inconsistent with the provisions of this
Thirty-Seventh Supplemental Indenture.
Section 12. This Thirty-Seventh Supplemental Indenture is
dated as of October 1, 1993, although executed and
delivered on the date of the acknowledgment hereof by the
Trustee; and shall be simultaneously executed and
delivered in several counterparts, and all such
counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
In Witness Whereof, Indianapolis Power & Light Company,
party of the first part, has caused its corporate name to
be hereunto affixed and this instrument to be signed and
acknowledged by its President or a Vice-President, and
its corporate seal to be hereto affixed and attested by
its Secretary or an Assistant Secretary, for and in its
behalf, and American National Bank and Trust Company of
Chicago, party of the second part, as Trustee, has caused
its corporate name to be hereunto affixed and this
instrument to be signed and acknowledged by one of its
Vice-Presidents, and its corporate seal to be hereto
affixed and attested by one of its Assistant Secretaries,
all as of the day, month and year first above written.
Indianapolis Power & Light Company
Attest: By /s/ Marcus E. Woods
Marcus E. Woods,
Vice-President
/s/ Clark L. Snyder
Clark L. Snyder,
Assistant Secretary
(Seal)
American National Bank and Trust
Company of Chicago
Attest: By /s/ Ronald B. Bremen
Ronald B. Bremen,
Vice-President
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary
(Seal)
State of Indiana )
) ss.:
County of Marion )
On this 5th day of October, in the year 1993, before me,
a Notary Public in and for the County and State aforesaid,
personally came Marcus E. Woods, Vice-President, and
Clark L. Snyder, Assistant Secretary, of Indianapolis Power &
Light Company, one of the corporations described in and
which executed the foregoing instrument, to me personally
known and known to me personally to be such Vice-President,
and Assistant Secretary, respectively. Said Marcus E.
Woods and Clark L. Snyder being by me severally duly
sworn did depose and say that the said Marcus E. Woods
resides in Hendricks County, Indiana and the said
Clark L. Snyder resides in Marion County, Indiana; that
said Marcus E. Woods is Vice-President and said Clark L.
Snyder is Assistant Secretary of said Indianapolis Power
& Light Company; that each of them knows the corporate seal of
said corporation; that the seal affixed to said instrument
and bearing the name of said corporation is such corporate
seal; that is was so affixed by order of the Board of
Directors of said corporation; and that each of them signed his
name thereto by like order; and each of them acknowledged
the execution of said instrument on behalf of said corporation
to be his free and voluntary act and deed and the free and
voluntary act and deed of said corporation, for the uses
and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 5th day of October, 1993.
/s/ Dinah L. Kirkham
Dinah L. Kirkham,
Notary Public
My Commission Expires:
June 23, 1996
My County of Residence is:
Johnson
(Notarial Seal)
State of Illinois )
) ss.:
County of Cook )
On this 4th day of October, in the year 1993, before me,
a Notary Public in and for the County and State
aforesaid, personally came Ronald B. Bremen, Vice-
President, and Robert M. Selangowski, Assistant
Secretary, of American National Bank and Trust Company of
Chicago, one of the corporations described in and which
executed the foregoing instrument, to me personally known
and known to me personally to be such Vice-President and
Assistant Secretary, respectively. Said Ronald B. Bremen
and Robert M. Selangowski, being by me severally sworn
did depose and say that the said Ronald B. Bremen resides
in Glencoe, Illinois, and that the said Robert M.
Selangowski resides in Lansing,Illinois; that said Ronald
B. Bremen is Vice-President and said Robert M.
Selangowski is Assistant Secretary of said American
National Bank and Trust Company of Chicago; that each of
them knows the corporate seal of said corporation; that
the seal affixed to said instrument and bearing the name
of said corporation is such corporate seal; that it was
so affixed by authority of the Board of Directors of said
corporation; that each of them signed his name thereto by
like authority; and each of them acknowledged the
execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and
the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 4th day of October, 1993.
/s/ Bernadette G. Janairo
Bernadette G. Janairo,
Notary Public
My Commission Expires: May 22, 1994
My County of Residence is:
Cook
(Notarial Seal)
This instrument was prepared by
Marcus E. Woods,
Attorney at Law
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
TRUSTEE
---------------
THIRTY-EIGHTH SUPPLEMENTAL INDENTURE
---------------
DATED AS OF OCTOBER 1, 1993
ESTABLISHING FIRST MORTGAGE BONDS,
5.50% SERIES, DUE 2023
TABLE OF CONTENTS*
of
THIRTY-EIGHTH SUPPLEMENTAL INDENTURE
of
INDIANAPOLIS POWER & LIGHT COMPANY
PAGE
----
Parties.................................................. 1
Recitals................................................. 1
Section 1 Granting clauses............................. 3
Part I Electric Distributing Systems.... 4
Part II Steam and Hot Water Distributing
Systems........................ 4
Part III Indeterminate Permits and
Franchises..................... 5
Part IV Other Property................... 5
General and after-acquired title............. 6
Section 2 Designation of Thirty-Sixth series of bonds
and kind and denominations thereof......... 6
Designation of Company or American National
Bank and Trust Company of Chicago as paying
agent...................................... 7
Purpose of bonds............................. 7
Redemption of bonds.......................... 8
Exchange of bonds............................ 12
Transfer of bonds............................ 13
Series limited to $30,000,000................ 13
Section 3 Form of fully registered bond................ 13
Form of Trustee's certificate on bonds....... 16
Section 4 Temporary bonds.............................. 19
Section 5 Payment of principal and interest; credits... 19
Section 6 Annual Payments for Maintenance and Improvement
Fund....................................... 20
Section 7 Compliance with Section 47 of Original Mortgage
with respect to dividend restrictions...... 20
Section 8 Acceptance of trusts by Trustee and conditions
of acceptance.............................. 20
Section 9 Successors and assigns....................... 21
Section 10 Limitation of rights hereunder............... 21
_________________________
*Table of Contents is not part of the Thirty-Eighth
Supplemental Indenture and should not be considered such.
It is included herein only for purposes of convenient
reference.
PAGE
----
Section 11 Compliance with terms, provisions and
conditions of Mortgage..................... 21
Section 12 Execution in counterparts.................... 21
Testimonium.............................................. 22
Signatures and Seals..................................... 22
Acknowledgements......................................... 23
ii
THIS THIRTY-EIGHTH SUPPLEMENTAL INDENTURE, dated as of
October 1, 1993, between INDIANAPOLIS POWER & LIGHT
COMPANY, a corporation of the State of Indiana,
hereinafter sometimes called the "Company," party of the
first part, and AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, a national banking association, as Trustee,
hereinafter sometimes called the "Trustee," party of the
second part;
WHEREAS, the Company by a Mortgage and Deed of Trust
(hereinafter sometimes called the "Original Mortgage"
when referred to as existing prior to any supplement
thereto or modification thereof, and the "Mortgage" when
referred to as now or heretofore supplemented and
modified) dated as of May 1, 1940, made to said American
National Bank and Trust Company of Chicago, as Trustee,
to secure the payment of the bonds issued from time to
time under the Mortgage for the purposes of and subject
to the limitations specified in the Mortgage, and to
secure the performance of the covenants therein
contained, conveyed to the Trustee thereunder upon
certain trusts, terms and conditions, and with and
subject to certain provisos and covenants therein
contained, all and singular the property, rights and
franchises which the Company then owned or should
thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any
indenture supplemental thereto, to which Mortgage
reference is hereby made for greater certainty; and
WHEREAS, the Original Mortgage has been supplemented and
modified by supplemental indentures dated as of May 1,
1942, as of February 1, 1948, as of April 1, 1949, as of
October 1, 1949, as of February 1, 1951, as of March 1,
1953, as of June 1, 1956, as of March 1, 1958, as of
October 1, 1960, as of August 1, 1964, as of April 1,
1966, as of May 1, 1967, as of May 1, 1968, as of October
1, 1970, as of March 1, 1972, as of March 15, 1973, as of
February 15, 1974, as of August 15, 1974, as of September
15, 1975, as of June 1, 1976, as of July 1, 1976, as of
August 1, 1977, as of September 1, 1978, as of August 1,
1981, as of November 1, 1983, as of November 1, 1984, as
of December 1, 1984, as of September 1, 1985, as of
October 1, 1986, as of June 1, 1989, as of August 1,
1989, as of October 15, 1991, as of August 1, 1992, as of
April 1, 1993 and as of October 1, 1993;
WHEREAS, Section 8 of the Original Mortgage provides,
among other things, that the form of each series of bonds
(other than the initial issue of bonds) issued thereunder
shall be established by an indenture supplemental thereto
authorized by resolution of the Board of Directors of the
Company, and that the form of each series, as established
by the Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof,
and may also contain such other provisions as the Board
of Directors may, in its discretion, cause to be inserted
therein expressing or referring to the terms and conditions
upon which such bonds are to be issued and secured under the
Original Mortgage or any indenture supplemental thereto
or in modification thereof; and
WHEREAS, the Company has entered into a Loan Agreement,
dated as of October 1, 1993 (hereinafter called the "Loan
Agreement") with the City of Petersburg, Indiana (the
"City"), in order to obtain funds for the refunding of
the aggregate principal amount of Thirty Million Dollars
($30,000,000) of the City's Pollution Control Revenue
Bonds, Series 1983 (Indianapolis Power & Light Company
Project) issued by the City pursuant to a related loan
agreement to pay a portion of the cost of acquisition,
construction, installation and equipping by the Company
of certain pollution control facilities (the
"Facilities"), and pursuant to the Loan Agreement the
Company has agreed to issue a series of its bonds under
the Mortgage and this Thirty-Eighth Supplemental
Indenture in order to evidence and secure its
indebtedness under the Loan Agreement; and
WHEREAS, the Company now desires to provide for the
establishment, execution, authentication and delivery
under the Mortgage of bonds of a series to be known as
its "First Mortgage Bonds, 5.50% Series, due 2023" (the
bonds of said series being hereinafter sometimes referred
to as the "2023 PC Bond"), limited to the aggregate
principal amount of Thirty Million Dollars ($30,000,000);
and
WHEREAS, all things necessary to make the 2023 PC Bond
hereinafter described, when duly executed by the Company
and authenticated and delivered by the Trustee, a valid,
binding and legal obligation of the Company, and to make
this Thirty-Eighth Supplemental Indenture a valid and
binding agreement supplemental to the Original Mortgage,
have been done and performed; and
WHEREAS, the execution and delivery by the Company of
this Thirty-Eighth Supplemental Indenture, and the terms
of the 2023 PC Bond, have been duly authorized by the
Board of Directors of the Company by appropriate
resolutions of said Board; and
WHEREAS, it is provided in and by the Original Mortgage
that the Company will execute and deliver such further
instruments and do such further acts as may be necessary
or proper to carry out more effectually the purposes of
the Mortgage, and to make subject to the lien thereof any
property thereafter acquired and intended to be subject
to the lien thereof; and
WHEREAS, the Company has, since the date of execution and
delivery of the Original Mortgage, purchased and acquired
property and desires by this Thirty-Eighth Supplemental
Indenture specifically to convey to the Trustee such
property for the better protection and security of the
bonds issued and to be issued under the Original
Mortgage, or any indenture supplemental thereto;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the acceptance or
purchase of the 2023 PC Bond by the registered owners
thereof, and of the sum of one dollar, lawful money of
the United States of America, to the Company duly paid by
the Trustee at or before the execution and delivery of
this Thirty-Eighth Supplemental Indenture, the receipt
whereof is hereby acknowledged, the Company and the
Trustee, respectively, have entered into, executed and
delivered this Thirty-Eighth Supplemental Indenture, for
the uses and purposes hereinafter expressed, that is to
say:
Section 1. The Company has granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, and by these presents
does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm
(subject, however, to permitted encumbrances as defined
in the Original Mortgage), unto said American National
Bank and Trust Company of Chicago, as Trustee, as herein
provided, and its successors in the trusts declared in
the Original Mortgage and herein, all of the property,
real, personal and mixed, tangible and intangible, of
every kind, character and description which the Company
has acquired since the execution and delivery of the
Original Mortgage and now owns (except property, rights
and assets of a character similar to that excluded from
the lien and operation of the Mortgage by the Granting
Clauses of the Original Mortgage, which property, rights
and assets are excluded from the lien and operation of
the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality
of the foregoing, the following described property
situated within the state of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired
by it after May 1, 1940, the date of the Original
Mortgage, and located in the Counties of Bartholomew,
Boone, Daviess, Greene, Hamilton, Hancock, Hendricks,
Johnson, Knox, Madison, Marion, Monroe, Morgan, Owen,
Pike, Putnam, Shelby and Sullivan, State of Indiana; and
any additions to or extensions of any such systems,
together with the buildings, erections, structures,
transmission lines, power stations, sub-stations,
engines, boilers, condensers, pumps, turbines, machinery,
tools, conduits, manholes, insulators, dynamos, motors,
lamps, cables, wires, poles, towers, cross-arms, piers,
abutments, switchboard equipment, meters, appliances,
instruments, apparatus, appurtenances, maps, records,
ledgers, contracts, facilities and other property or
equipment used or provided for use in connection with the
construction, maintenance, repair and operation thereof;
together also with all of the rights, privileges, rights-
of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits and easements of the
Company in respect of the construction, maintenance,
repair and operation of said systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired
by the Company after May 1, 1940, the date of the
Original Mortgage, and located in the City of
Indianapolis, Marion County, Indiana, and any additions
to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters,
engines, tanks, pipe lines, mains, connections, service
pipes, meters, tools, instruments, appliances, apparatus,
facilities, machinery and other property and equipment
used or provided for use in the construction,
maintenance, repair and operation thereof; and together
also with all of the rights, privileges, rights-of-way,
franchises, licenses, grants, liberties, immunities,
ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and
operation of said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances,
licenses, and other authorizations by or from any state,
county, municipality, or other governmental authority,
acquired by the Company after May 1, 1940, the date of
the Original Mortgage, including particularly, but not
limited to, any indeterminate permits
under the Public Service Commission Act of the State of
Indiana, and all Acts amendatory thereof and supplemental
thereto, and all right, title and interest therein now
owned by the Company, and all renewals, extensions and
modifications of said indeterminate permits, franchises,
ordinances, licenses, and other authorizations, and of
the indeterminate permits, franchises, ordinances,
licenses, and other authorizations referred to in Part
VII of the Granting Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed
(except any in the Mortgage expressly excepted), now
owned by the Company and wheresoever situated, including
(without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the
foregoing or of any general description contained in the
Mortgages) all lands, flowage rights, water rights,
flumes, raceways, dams, rights-of-way and roads; all
plants for the generation of electricity by water, steam
and/or other power, power houses, telephone systems,
water systems, steam heat and power plants, hot water
plants, sub-stations, transmission lines, distribution
systems, bridges, culverts and tracts; all offices,
buildings and structures and the equipment thereof; all
machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors;
all appliances whether electrical, gas or mechanical,
conduits, cables and lines; all pipes whether for water,
steam heat and power, or other purposes; all mains and
pipes, service pipes, fittings, valves and connections,
poles, wires, tools, implements, apparatus, furniture and
chattels; all municipal franchises, indeterminate
permits, and other permits; all lines for the
transportation, transmission and/or distribution of
electric current, steam heat and power or water for any
purpose, including towers, poles, wires, cables, pipes,
conduits and all apparatus for use in connection
therewith; all real estate, lands, leases, leaseholds;
all contracts, whether heat, light, power, water or
street lighting contracts; all easements, servitudes,
licenses, permits, rights, powers, franchises,
privileges, rights-of-way and other rights in or relating
to real estate or the occupancy of the same and (except
as hereinafter or in the Mortgage expressly excepted) all
the right, title and interest of the Company in and to
all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described or referred to;
Together with all and singular the tenements,
hereditaments and appurtenances belonging or in anywise
appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 64
of the Original Mortgage), the tolls, rents, revenues,
issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the
aforesaid property, indeterminate permits, franchises,
ordinances, licenses
and other authorizations and every part and parcel
thereof.
Section 2. There shall be and is hereby established a
series of bonds, limited in aggregate principal amount to
Thirty Million Dollars ($30,000,000) to be issued under
and secured by the Mortgage, to be designated "5.50%
Series, due 2023", each of which shall also bear the
descriptive title "First Mortgage Bonds"; said bonds
shall mature on October 1, 2023, and shall be issued only
as fully registered bonds without coupons in the
denomination of five thousand dollars and any larger
denomination which is a multiple of five thousand
dollars; they shall bear interest from the beginning of
the current interest period during which each bond is
dated, at the rate per annum designated in the title
thereof, payable semi-annually, on April 1 and October 1
of each year; and the principal of, premium, if any, and
interest on said bond shall be payable in lawful money of
the United States of America at the office of the Company
in the City of Indianapolis, Indiana, or, if no such
office is maintained, at American National Bank and Trust
Company of Chicago, which is hereby designated and
appointed the office and agency of the Company in the
City of Chicago, Illinois, for the payment of the
principal of, premium, if any, and interest on the 2023
PC Bond, if necessary, and for the registration,
transfer and exchange of such bonds as hereinafter
provided; all reference herein to the office or agency of
the Company in the City of Chicago, Illinois, for the
payment of the principal of, premium, if any, and
interest on the 2023 PC Bond, or the registration,
transfer or exchange thereof, being to American National
Bank and Trust Company of Chicago. In the event of the
resignation or inability to act of American National Bank
and Trust Company of Chicago, then a successor agent for
all such purposes in the City of Chicago, Illinois, shall
be appointed by the Board of Directors of the Company.
The 2023 PC Bond shall be dated as of the date of
authentication thereof, except as otherwise provided in
Section 10 of the Original Mortgage.
The 2023 PC Bond will be issued to evidence and secure a
loan to the Company by the City pursuant to the Loan
Agreement of certain funds to be acquired by the City
through the issuance of City of Petersburg, Indiana,
Pollution Control Refunding Revenue Bonds, Series 1993C
(Indianapolis Power & Light Company Project)(the "Series
1993C Bonds"), authenticated and delivered under and
pursuant to an Indenture of Trust dated as of October 1,
1993 (hereinafter called the "City Indenture"), by and
between the City and Bank One, Indianapolis, NA, as
Trustee (the "City Trustee"). Pursuant to the City's
pledge and assignment of the Loan Agreement, as set forth
in the City Indenture, the 2023 PC Bond shall be issued
to the City and assigned to the City Trustee. All of the
proceeds of the Series 1993C Bonds will be used for the
refunding of the aggregate principal amount of Thirty
Million Dollars ($30,000,000) of the City's Pollution
Control Revenue Bonds, Series 1983 (Indianapolis Power &
Light Company Project) issued by the City pursuant to
applicable loan agreements.
Upon the notice and in the manner and with the effect
provided in this Section 2, the 2023 PC Bond shall be
redeemable prior to the maturity thereof under any one or
more of the following circumstances:
(a) In whole, at the option of the Company, if the
Facilities or Unit 4 of the Petersburg Generating Station
serviced by the Facilities shall have been damaged or
destroyed (i) to such extent that they cannot be
reasonably expected, in the opinion of the Company, to be
restored within a period of six (6) months to the
condition thereof immediately preceding such damage or
destruction, or (ii) to such extent that the Company, in
its reasonable opinion, is thereby prevented from
carrying on its normal operations for a period of six (6)
months or more, or (iii) to such extent that the
restoration thereof would not be, taking into
consideration the net proceeds of any insurance payable
as a result of such damage or destruction, economic in
the reasonable opinion of the Company.
(b) In whole, at the option of the Company, if title to,
or the temporary use of, all or substantially all of the
Facilities or Unit 4 of the Petersburg Generation Station
serviced by the Facilities, shall have been taken, under
the exercise of the power of eminent domain, or should
any governmental body or agency exercise any right which
it may have to purchase or designate a purchaser of the
same, or should such property be sold to any governmental
body or agency so that the result of such taking or
takings is that (i) the Company, in its reasonable
opinion, is thereby prevented from carrying on its normal
operations of either the Facilities or such Unit 4 for a
period of six (6) months or more, (ii) the restoration
required as a result of the taking cannot be reasonably
expected, in the opinion of the Company, to be completed
in a period of six (6) months, or (iii) the restoration
thereof, taking into consideration the net proceeds from
such eminent domain award, would not be economic in the
reasonable opinion of the Company.
(c) In whole, at the option of the Company, if, as a
result of any changes in the Constitution or law of the
State of Indiana or the Constitution or law of the United
States of America or of legislative or administrative
action (whether state or federal) or by final decree,
judgment or order of any court or administrative body
(whether state or federal) entered after the contest
thereof by the Company in good faith or the decision of
the Company not to contest the same, the Loan Agreement
shall, in the reasonable opinion of counsel for the
Company, have become void or unenforceable or impossible
of performance in accordance with the intent and purpose
of the parties as expressed in the Loan Agreement; or
unreasonable burdens or excessive liabilities shall, in
the reasonable opinion of the Company, have been imposed
upon the City or the company, with respect to the
Facilities or operation thereof, including without
limitation federal, state or other ad valorem, property,
income or other taxes not being imposed on the date of
the Loan Agreement other than ad valorem taxes presently
levied upon privately owned property used for the same
general purpose as the Facilities.
(d) In whole, at the option of the Company, if changes
in the economic availability of raw materials, operating
supplies or facilities necessary for the operation of the
Facilities or the operation of Unit 4 of the Petersburg
Generating Station serviced by the Facilities shall have
occurred or technological or other changes shall have
occurred which render the Facilities or said Unit 4
uneconomic for use in the reasonable opinion of the
company.
(e) In part, at the option of the Company, to the extent
of net proceeds received from any condemnation award,
taking or sale as stated herein, if title to, or the
temporary use of any portion of the Facilities shall have
been taken under the exercise of the power of eminent
domain, or should any governmental body or agency
exercise any right it may have to pruchase or designate a
purchaser of the same, or should such property be sold to
any governmental body or agency; provided the Company
shall furnish to the City and the City Trustee a
certificate of an Independent Engineer (as defined in the
Loan Agreement) selected by the Company stating (i) that
the property forming the part of the Facilities that was
taken by such condemnation, taking or sale is not
essential to the character or significance of the
Facilities, or (ii) that the Facilities have been
restored to a condition substantially equivalent to their
condition prior to the taking by such condemnation,
taking or sale proceedings, or (iii) that improvements
have been acquired which are suitable for the operation
of the Facilities.
(f) In whole, at any time on or after October 1, 2003,
or in part on any interest payment date on or after
October 1, 2003, at the option of the Company at a price
equal to the principal amount of the 2023 PC Bond so to
be redeemed and accrued interest to the date of
redemption, together with a premium equal to a percentage
of the principal amount thereof set forth under the
heading "Redemption Premium" in the form of the 2023 PC
Bond hereinafter recited, so long as the Company is not
in default under the Loan Agreement or the 2023 PC Bond.
(g) In the event all or substantially all of the
mortgaged and pledged property under the Mortgage, or all
or substantially all such property used in the business
of generating, manufacturing, transporting, transmitting,
distributing or supplying electricity, should be taken by
exercise of the power of eminent domain, or should any
governmental body or agency exercise any right which it
may have to purchase or designate a purchaser of the
same, or should such property be sold to any governmental
body or agency, the Company shall be obligated to redeem
the 2023 PC Bond outstanding as promptly as possible in
accordance with paragraph B of Section 69 of the Original
Mortgage.
(h) In the event that the Company is notified by the
City Trustee that (i) an event of default under the City
Indenture has occurred and is continuing, and (ii) the
City Trustee has declared the principal of all the Series
1993C Bonds then outstanding immediately due and payable
pursuant to the City Indenture, the Company shall call
for redemption, on a redemption date selected by it not
later than thirty (30) days following the date on which
such notice is mailed, the 2023 PC Bond outstanding, and
shall on such redemption date redeem the same; provided,
however, that such requirement of redemption shall be
deemed waived, if prior to the date fixed for such
redemption of the 2023 PC Bond (x) such event of default
is waived or cured as set forth in the City Indenture, or
(y) there shall have occurred any completed default (as
defined in the Mortgage) which affects any bond of any
series outstanding under the Mortgage and which completed
default has not been cured and made good prior to such
redemption date, it being the intent of this proviso
that, in lieu of such right to redemption, the holder of
the 2023 PC Bond shall be entitled only to such rights as
are available to the holders of bonds of any other series
outstanding under the Mortgage in the event of such
completed default; and in case of any subsequent
occurrence or continuance of the events described in (i)
and (ii) of this Section 2(h), the Company shall have the
same obligation (subject to the same proviso) to redeem
the 2023 PC Bond.
(i) In the event the City Trustee notifies the Company
and the City that the interest payable on the Series
1993C Bonds held by persons other than a "substantial
user" or a "related person" as those terms are used in
Section 147(a)(2) of the Internal Revenue code of 1986,
as amended, has been determined by a court of competent
jurisdiction or a formal ruling of the Internal Revenue
Service to be subject to federal income taxation by
reason of a breach by the Company of any covenant,
agreement or representation in the Loan Agreement, the
Company shall call the 2023 PC Bond then outstanding to
be redeemed on the next succeeding interest payment date
within one hundred eighty (180) days after the date of
such notice; provided, however, that such requirement of
redemption, whether in whole or in part shall be deemed
waived if, prior to the date fixed for redemption of the
2023 PC Bond pursuant to this Section 2(i), there shall
have occurred any completed default (as defined in the
Mortgage) which affects any bond of any series
outstanding under the Mortgage and which completed
default has not been cured and made good prior to such
redemption date, it being the intent of this proviso
that, in lieu of such right to redemption, the holder of
the 2023 PC Bond shall be entitled only to such rights as
are available to the holders of bonds of any other series
outstanding under the Mortgage in the event of such
completed default; but when any such completed default
shall have been cured and made good, if interest on the
Series 1993C Bonds shall still be taxable as described
above, the Company shall have the same obligation
(subject to the same proviso) to redeem the 2023 PC Bond
on the next succeeding interest payment date within one
hundred eighty (180) days after the curing and making
good of such completed default; provided further, that
the Company may call for redemption such portion of the
2023 PC Bond, which in the written opinion of an attorney
or firm of attorneys of nationally recognized standing on
the subject of municipal bonds, would allow the City
Trustee to redeem the Series 1993C Bonds in part, which
redemption would have the result that the interest
payable on the Series 1993C Bonds remaining outstanding
after such redemption in part would not be subject to
federal income taxation in the hands of persons other
than a "substantial user" or a "related person" as those
terms are used in Section 147(a)(2) of the Internal
Revenue Code of 1986, as amended.
In case of redemption of 2023 PC Bond in whole for the
purpose of repayment under the Loan Agreement pursuant to
subsection (a), (b), (c), (d), (f), (g), (h) or (i)
above, the amounts payable upon redemption of 2023 PC
Bond shall be a sum sufficient, together with other funds
deposited with the City Trustee and available for such
purpose, to pay the principal of (and premium, in the
case of redemption pursuant to (f) above, and interest on
the 2023 PC Bond then outstanding and to pay all
reasonable and necessary fees and expenses of the City
Trustee accrued and to accrue through final payment of
the 203 PC Bond.
In case of redemption in part pursuant to (e), (f) or (i)
above, the amount payable by the Company under this
Thirty-Eighth Supplemental Indenture, the Loan Agreement
and the 2023 PC Bond shall be a sum sufficient, together
with other funds deposited with the Trustee and available
for such purpose, to pay the principal of (and premium in
the case of prepayment pursuant to (f) above) and
interest on the 2023 PC Bond so to be redeemed, which sum
together with other funds deposited with the City Trustee
and available for such purpose shall be sufficient to pay
the principal of, premium, if any, and interest on the
Series 1993C Bonds and to pay all reasonable and
necessary fees and expenses of the City Trustee accrued
and to accrue through such partial prepayment.
The 2023 PC Bond and the Series 1993C Bonds shall be
redeemable at any time within one hundred eighty (180)
days following the event or events described as giving
rise to an option of the Company to redeem them in
subsections (a), (b), (c), (d) or (e) above.
To exercise any of the options granted to redeem the 2023
PC Bond in whole or in part or to comply with any
obligations to redeem the 2023 PC Bond in whole or in
part imposed in this Section 2, the Company shall give
written notice of the date of redemption to the City
Trustee, which date shall be not less than thirty (30)
days nor more than ninety (90) days from the date the
notice is mailed. NO further notice, by publication or
otherwise, shall be required for redemption of the 2023
PC Bond, and the requirements of Section 59 of the
Mortgage for notice by newspaper publication shall not
apply to the 2023 PC Bond.
At the option of the holder, the 2023 PC Bond, upon
surrender thereof at the office or agency of the company
in Chicago, Illinois, together with a written instrument
of transfer in form approved by the Company duly executed
by the holder or by his duly authorized attorney, shall
be exchangeable for a like aggregate principal amount of
fully registered bonds of the same series of other
authorized denominations.
The 2023 PC Bond will be nontransferable except to the
City Trustee and successors thereto, if any, and to the
Company. To the extent that it is transferable, it is
tranferable by the registered holder thereof, in person
or by attorney duly authorized in writing, on the books
of the Company at the office or agency of the Company in
the City of Chicago, Illinois, upon surrender thereof for
cancellation at said office and upon presentation of a
written instrument of transfer duly executed. Thereupon,
the Company shall issue in the name of the transferee,
and the Trustee shall authenticate and deliver, a new
registered 2023 PC Bond or Bonds, in authorized
denominations, of equal aggregate principal amount. Any
such transfer shall be subject to the terms and
conditions specified in the Mortgage and in this Thirty-
Eighth Supplemental Indenture.
The Company shall not be required to transfer or exchange
the 2023 PC Bond for a period of ten (10) days next
preceding any interest payment date of said bond.
Except as set forth herein, no charge shall be made upon
any transfer or exchange of any of the 2023 PC Bond other
than for any tax or taxes or other governmental charge
required to be paid by the Company.
The 2023 PC Bond shall be limited to an aggregate
principal amount of Thirty Million Dollars ($30,000,000)
and shall be issued under the provisions of Article VII
of the Original Mortgage.
Section 3. The 2023 PC Bond, and the Trustee's
Certificate to be endorsed thereon, shall be in the
following forms, respectively:
[form of face of 2023 PC Bond]
This First Mortgage Bond, 5.50% Series, due 2023
(hereinafter called the "2023 PC Bond") is not
transferable except to a successor trustee under the
Indenture of Trust dated as of October 1, 1993, between
the City of Petersburg, Indiana and Bank One,
Indianapolis, NA, as the Trustee, or to Indianapolis
Power & Light Company.
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 5.50% Series, Due 2023
Due October 1, 2023
No. $
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the
State of Indiana (hereinafter called the "Company"), for
value received, hereby promises to pay to Bank One,
Indianapolis, NA, as the Trustee (hereinafter called the
"City Trustee") under the Indenture of Trust between the
City of Petersburg, Indiana (the "City") and the City
Trustee, dated as of October 1, 1993, (the "City
Indenture") or registered assigns, on October 1, 2023, at
the office of the Company, in the City of Indianapolis,
State of Indiana, or if no such office is maintained at
the time by the Company, then at the office or agency of
the Company for such purpose in the City of Chicago,
State of Illinois, Thirty Million Dollars ($30,000,000)
in lawful money of the United States of America, and to
pay to the registered owner hereof interest thereon from
the first day of October or the first day of April next
preceding the date of this 2023 PC Bond, at the rate of
five and fifty hundredths per centum (5.50%) per annum in
like lawful money at said office or agency, on October 1
and April 1 in each year, until the Company's obligation
with respect to the payment of such principal shall have
been discharged. The interest payable hereunder on
October 1 or April 1 will be paid to the registered owner
of this 2023 PC Bond at or before the close of business
on such dates, or if such date shall be a Saturday,
Sunday, holiday or a day on which banking institutions in
the City of Indianapolis or the city of any paying agents
are authorized by law to close, on or before the close of
business on the next succeeding business day on which
such banking institutions are open for business.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS 2023
PC BOND SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL, FOR ALL PURPOSES, HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH IN THIS PLACE.
No recourse shall be had for the payment of the principal
of or interest on this 2023 PC Bond against any
incorporator or any past, present or future subscriber to
the capital stock, stockholder, officer or director of
the Company or of any predecessor or successor
corporation, as such, either directly or through the
Company or any predecessor or successor corporation,
under any rule of law, statute, or constitution or by the
enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and
released by the terms of the Mortgage, as herein defined.
This 2023 PC Bond shall not become obligatory until
American National Bank and Trust Company of Chicago, the
Trustee under the Mortgage, as herein defined, or its
successor thereunder, shall have signed the form of
certificate endorsed hereon.
IN WITNESS WHEREOF, Indianapolis Power & Light Company
has caused this 2023 PC Bond to be signed in its name by
its President or one of its Vice-Presidents, by his
signature or a facsimile thereof, and its corporate seal
to be affixed hereon, attested by its Secretary or one of
its Assistant Secretaries, by his signature or a
facsimile thereof.
INDIANAPOLIS POWER & LIGHT COMPANY
Dated: By_______________________________________
Vice-President
Attest:
By_____________________________
Secretary
[Form of Trustee's Certificate on 2023 PC Bond]
Trustee's Certificate
This 2023 PC Bond is one of the bonds, of the series
herein designated, provided for in the within-mentioned
Mortgage and Thirty-Eighth Supplemental Indenture
thereto.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
Trustee
By______________________________________
Authorized Signature
[Form of Reverse Side of 2023 PC Bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 5.50% Series, due 2023
Due October 1, 2023
This 2023 PC Bond is one of an issue of bonds of the
Company, issuable in series, and is one of a series known
as its First Mortgage Bonds, 5.50% Series, due 2023
(herein called the "2023 PC Bond") limited in aggregate
principal amount to Thirty Million Dollars ($30,000,000)
and established by a Thirty-Eighth Supplemental Indenture
dated as of October 1, 1993, all bonds of all series
issued and to be issued under and equally secured (except
insofar as any sinking or other fund, established in
accordance with the provisions of the Mortgage
hereinafter mentioned, may afford additional security for
the bonds of any particular series) by a Mortgage and
Deed of Trust, dated as of May 1, 1940, executed by the
Company to American National Bank and Trust Company of
Chicago, as the Trustee (which Mortgage and Deed of Trust
as supplemented and modified by all supplemental
indentures thereto is hereinafter referred to as the
"Mortgage"), to which Mortgage reference is made for a
description of the property mortgaged and pledged, the
nature and extent of the security, the rights of the
bearers or registered owners of the bonds in respect of
such security, the duties and immunities of the Trustee
and terms and conditions upon which the bonds are
secured.
This 2023 PC Bond evidences and secures a loan made by
the City to the Company, pursuant to a Loan Agreement,
dated as of October 1, 1993, between the City and the
Company (the "Loan Agreement"). In order to obtain funds
for such loan, the City, contemporaneously with the issue
of this 2023 PC Bond, will issue Thirty Million Dollars
($30,000,000) principal amount of its Pollution Control
Refunding Revenue Bonds, Series 1993C (Indianapolis Power
& Light Company Project) (the "City Bonds") under and
pursuant to the City Indenture. The City Bonds are
payable from payments made by the Company of principal
of, premium, if any, and interest on this 2023 PC Bond
and from moneys in the Bond Fund created under the City
Indenture. The obligation of the Company to pay the
principal of, premium, if any, and interest on this 2023
PC Bond shall be discharged to the extent that any moneys
in said Bond Fund are available for payments on the City
Bonds and are directed by the Company to be applied
thereto, all as provided in the Thirty-Eighth
Supplemental Indenture.
This 2023 PC Bond is not subject to redemption prior to
October 1, 2003, except as provided in Section 2 of the
Thirty-Eighth Supplemental Indenture, to which reference
is made for full description of redemption provisions.
This 2023 PC Bond is subject to redemption in whole at
any time on or after October 1, 2003, or in part on any
interest payment date on or after October 1, 2003, at the
option of the Company, upon at least thirty (30) days
prior notice, all as provided in the Thirty-Eighth
Supplemental Indenture, at a price equal to the principal
amount of the 2023 PC Bond so to be redeemed and accrued
interest to the date of redemption, together with a
premium equal to a percentage of the principal amount
thereof set forth below under the heading "Redemption
Premium":
If Redeemed During the Twelve Months
Ending With the Thirtieth Day Redemption
of September of the Year Stated Premium
2004................................ 2.0%
2005................................ 1.0%
and without premium if redeemed after September 30, 2005.
With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or of the holders of
the bonds and/or coupons and/or the terms and provisions
of the Mortgage and/or any instruments supplemental
thereto may be modified or altered by affirmative vote of
the holders of at least sixty-six and two-thirds per
centum (66-2/3%) in principal amount of the bonds
affected by such modification or alteration then
outstanding under the Mortgage (excluding bonds
disqualified from voting by reason of the Company's
interest therein as provided in the Mortgage); provided
that no such modification or alteration shall permit the
extension of the maturity of the principal of this 2023
PC Bond or the reduction in the rate of interest hereon
or any other modification in the terms of payment of such
principal or interest without the consent of the holder
hereof. The principal hereof may be declared or may
become due and payable prior to the stated date of
maturity hereof, on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence
of a completed default as in the Mortgage provided.
No reference herein to the Mortgage, and no provision of
this 2023 PC Bond or of the Mortgage, shall alter or
impair the obligation of the Company, which is absolute
and unconditional, to pay, subject to the provisions of
the Thirty-Eighth Supplemental Indenture, the principal
of, and premium, if any, and interest on this 2023 PC
Bond at the place, at the respective times and at the
rate and the manner herein prescribed.
This 2023 PC Bond is issuable only in full registered
form without coupons in denominations of Five Thousand
Dollars and any larger denomination which is a whole
multiple of Five Thousand Dollars.
This 2023 PC Bond will be nontransferable except to the
City Trustee and successor thereto, if any, and to the
Company. To the extent that it is transferable, it is
transferable by the registered holder thereof, in person
or by attorney duly authorized in writing, on the books
of the Company at the office or agency of the Company in
the City of Chicago, Illinois, upon surrender thereof for
cancellation at said office and upon presentation of a
written instrument of transfer duly executed. Thereupon,
the Company shall issue in the name of the transferee,
and the Trustee shall authenticate and deliver, a new
registered 2023 PC Bond or Bonds, in authorized
denominations, of equal aggregate principal amount. Any
such transfer shall be subject to the terms and
conditions specified in the Mortgage and in the Thirty-
Eighth Supplemental Indenture.
[End of 2023 PC Bond Form]
Section 4. Until the 2023 PC Bond in definitive form is
ready for delivery, the Company may execute, and upon its
request in writing the Trustee shall authenticate and
deliver, in lieu thereof, fully registered 2023 PC Bond
in temporary form, as provided in Section 15 of the
Original Mortgage. Such bond may, in lieu of the
statement of the specific redemption prices required to
be set forth in such bond in definitive form, include a
reference to this Thirty-Eighth Supplemental Indenture
for a statement of such redemption prices.
Section 5. The Company covenants and agrees that it will
duly and punctually pay to the holder of the 2023 PC Bond
the principal thereof, premium, if any, and interest on
said bond at the dates and place and in the manner
mentioned therein; provided, however, that:
(a) The obligation of the Company to pay the
principal of, and premium, if any, and interest on the
2023 PC Bond shall be discharged to the extent that any
moneys in the Series 1993C Bond Account within the Bond
Fund created under and pursuant to the City Indenture are
available for the payment of the principal of, or
premium, if any, of interest on the Series 1993C Bonds
and are directed by the Company to be applied to the
payment thereof in the manner provided in the City
Indenture on or prior to the dates on which the Company
is required to pay the principal of, or premium, if any,
or interest on the 2023 PC Bond.
(b) Except as otherwise provided in this Section 5,
the principal amount of any Series 1993C Bond acquired by
the Company and delivered to the City Trustee, or
acquired by the City Trustee and cancelled, shall be
credited against the obligation of the Company to pay the
principal of the 2023 PC Bond.
As the principal of, premium, if any, and interest on the
2023 PC Bond is paid or deemed paid in full, and upon its
receipt by the Company, such bond shall be delivered to
the Trustee for cancellation. The Company shall promptly
inform the Trustee of all payments made and credits
availed of with respect to its obligations on the 2023 PC
Bond. The Trustee shall not be required to recognize any
payment made or credit availed of with respect to any
2023 PC Bond unless it has received (a) the bond for
cancellation by it, or (b) a certificate signed by a duly
authorized officer of the City Trustee specifying the
amount of such payment or credit and the principal amount
of the 2023 PC Bond with respect to which the payment or
credit was applied. In the absence of receipt by the
Trustee of any 2023 PC Bond, any such certificate shall
be controlling and conclusive.
Section 6. The covenant of the Company to make annual
payments to the Trustee for a Maintenance and Improvement
Fund as contained in Section 41 of the Original Mortgage
and in the first twenty-four Supplemental Indentures in
the Original Mortgage creating the several series of
First Mortgage Bonds presently outstanding under such
Supplemental Indentures shall not apply to nor be for the
benefit of the 2023 PC Bond, and the Company reserves the
right, without any consent of, or other action by, the
holder of the 2023 PC Bond, to amend, modify or delete
the provisions of the Mortgage relating to such
Maintenance and Improvement Fund and by acceptance of the
2023 PC Bond the holder thereof waives any right or
privilege so to consent or take any other action with
repsect thereto.
Section 7. The Company covenants that, so long as the
2023 PC Bond shall remain outstanding, it will comply
with all of the provisions of Section 47 of the Original
Mortgage, including the provisions with respect to
limitations on dividends and distributions and the
purchase and redemption of stock.
Section 8. The Trustee hereby accepts the trusts herein
declared, provided and created and agrees to perform the
same upon the terms and conditions herein and in the
Mortgage set forth and upon the following terms and
conditions:
The recitals contained herein and in the bonds shall be
taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the
validity or adequacy of the security afforded hereby, or
as to the validity of this Thirty-Eighth Supplemental
Indenture or of the 2023 PC Bond issued hereunder.
Section 9. Whenever in this Thirty-Eighth Supplemental
Indenture either of the parties hereto is named or
referred to, this shall, subject to the provisions of
Article XVII of the Original Mortgage, be deemed to
include the successors or assigns of such party, and all
the covenants and agreements in this Thirty-Eighth
Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the benefit of
the respective successors and assigns of such parties,
whether so expressed or not.
Section 10. Nothing in this Thirty-Eighth Supplemental
Indenture expressed or implied, is intended or shall be
construed to confer upon, or to give to, any person, co-
partnership or corporation, other than the parties hereto
and the holders of the bonds and coupons outstanding
under the Mortgage, any right, remedy, or claim under or
by reason of this Thirty-Eighth Supplemental Indenture or
any covenant, condition or stipulation hereof; and all
the covenants, conditions, stipulations, promises and
agreements in this Thirty-Eighth Supplemental Indenture
contained by or on behalf of the Company shall be for the
sole and exclusive benefit of the parties hereto and of
the holders of the bonds and of the coupons outstanding
under the Mortgage.
Section 11. The Company covenants that all of the terms,
provisions and conditions of the Mortgage shall be
applicable to the 2023 PC Bond issued hereunder, except
as herein otherwise provided and except insofar as the
same may be inconsistent with the provisions of this
Thirty-Eighth Supplemental Indenture.
Section 12. This Thirty-Eighth Supplemental Indenture is
dated as of October 1, 1993, although executed and
delivered on the date of the acknowledgment hereof by the
Trustee; and shall be simultaneously executed and
delivered in several counterparts, and all such
counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, INDIANAPOLIS POWER & LIGHT COMPANY,
party of the first part, has caused its corporate name to
be hereunto affixed and this instrument to be signed and
acknowledged by its President or a Vice-President, and
its corporate seal to be hereto affixed and attested by
one of its Secretary or an Assistant Secretary, for and
in its behalf, and American National Bank and Trust
Company of Chicago, party of the second part, as Trustee,
has caused its corporate name to be hereunto affixed and
this instrument to be signed and acknowledged by one of
its Vice-Presidents, and its corporate seal to be hereto
affixed and attested by one of its Assistant Secretaries,
all as of the day, month and year first above written.
Indianapolis Power & Light Company
Attest: By /s/ Marcus E. Woods
Marcus E. Woods,
Vice-President
/s/ Clark L. Snyder
Clark L. Snyder,
Assistant Secretary
(Seal)
American National Bank and Trust
Company of Chicago,
Attest: By /s/ Ronald B. Bremen
Ronald B. Bremen,
Vice-President
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary
(Seal)
State of Indiana )
) ss.:
County of Marion )
On this 5th day of October, in the year 1993, before me,
a Notary Public in and for the County and State aforesaid,
personally came Marcus E. Woods, Vice-President, and
Clark L. Snyder, Assistant Secretary, of Indianapolis Power &
Light Company, one of the corporations described in and
which executed the foregoing instrument, to me personally
known and known to me personally to be such Vice-President,
and Assistant Secretary, respectively. Said Marcus E.
Woods and Clark L. Snyder being by me severally duly
sworn did depose and say that the said Marcus E. Woods
resides in Hendricks County, Indiana and the said
Clark L. Snyder resides in Marion County, Indiana; that
said Marcus E. Woods is Vice-President and said Clark L.
Snyder is Assistant Secretary of said Indianapolis Power
& Light Company; that each of them knows the corporate seal of
said corporation; that the seal affixed to said instrument
and bearing the name of said corporation is such corporate seal;
that is was so affixed by order of the Board of Directors of
said corporation; and that each of them signed his
name thereto by like order; and each of them acknowledged
the execution of said instrument on behalf of said corporation
to be his free and voluntary act and deed and the free and
voluntary act and deed of said corporation, for the uses
and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 5th day of October, 1993.
/s/ Dinah L. Kirkham
Dinah L. Kirkham,
Notary Public
My Commission Expires:
June 23, 1996
My County of Residence is:
Johnson
(Notarial Seal)
State of Illinois )
) ss.:
County of Cook )
On this 4th day of October, in the year 1993, before
me, a Notary Public in and for the County and State
aforesaid, personally came Ronald B. Bremen, Vice-
President, and Robert M. Selangowski, Assistant
Secretary, of American National Bank and Trust
Company of Chicago, one of the corporations described
in and which executed the foregoing instrument,
to me personally known and known to me personally to
be such Vice-President and Assistant Secretary,
respectively. Said Ronald B. Bremen and Robert M.
Selangowski, being by me severally sworn did depose
and say that the said Ronald B. Bremen resides in
Glencoe, Illinois, and that the said Robert M.
Selangowski resides in Lansing, Illinois; that said
Ronald B. Bremen is Vice-President and said Robert M.
Selangowski is Assistant Secretary of said American
National Bank and Trust Company of Chicago; that
each of them knows the corporate seal of said corpora-
tion; that the seal affixed to said instrument and
bearing the name of said corporation is such corporate
seal; that it was so affixed by authority of the
Board of Directors of said corporation; that each of them
signed his name thereto by like authority; and each of
them acknowledged the execution of said instrument on
behalf of said corporation to be his free and voluntary
act and deed and the free and voluntary act and deed
of said corporation, for the uses and purposes therein
set forth.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal this 4th day of October, 1993.
/s/ Bernadette G. Janairo
Bernadette G. Janairo,
Notary Public
My Commission Expires: May 22, 1994
My County of Residence is:
Cook
(Notarial Seal)
This instrument was prepared by
Marcus E. Woods,
Attorney at Law
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
TRUSTEE
---------------
THIRTY-NINTH SUPPLEMENTAL INDENTURE
---------------
DATED AS OF FEBRUARY 1, 1994
ESTABLISHING FIRST MORTGAGE BONDS,
6.05% SERIES, DUE 2004
TABLE OF CONTENTS*
OF
THIRTY-NINTH SUPPLEMENTAL INDENTURE
OF
INDIANAPOLIS POWER & LIGHT COMPANY
PAGE
----
Parties.................................................. 1
Recitals................................................. 1
Section 1 Granting clauses.............................. 3
Part I Electric Distributing Systems...... 3
Part II Steam and Hot Water Distributing
Systems.......................... 4
Part III Indeterminate Permits and
Franchises....................... 4
Part IV Other Property.................... 5
General and after-acquired title.............. 6
Section 2 Designation of thirty-seventh series of bonds
and kind and denominations thereof.......... 6
Record date for payment of interest........... 7
Designation of American National Bank and
Trust Company of Chicago as paying agent.... 7
Bonds issued in book-entry form............... 7
Exchange of bonds............................. 9
Transfer of bonds............................. 9
Series limited to $80,000,000................. 10
Section 3 Form of fully registered bond................. 10
Form of Trustee's certificate on bonds........ 12
Section 4 Temporary bonds............................... 14
Section 5 Annual Payments for Maintenance and Improvement
Fund........................................ 14
Section 6 Compliance with Section 47 of Original Mortgage
with respect to dividend restrictions....... 15
Section 7 Acceptance of trusts by Trustee and conditions
of acceptance............................... 15
Section 8 Successors and assigns........................ 15
Section 9 Limitation of rights hereunder................ 15
- ---------
*Table of Contents is not part of the Thirty-Ninth
Supplemental Indenture and should not be considered such.
It is included herein only for purposes of convenient reference.
PAGE
----
Section 10 Compliance with terms, provisions and
conditions of Mortgage..................... 16
Section 11 Execution in counterparts.................... 16
Testimonium.............................................. 17
Signatures and Seals..................................... 17
Acknowledgements......................................... 18
ii
THIS THIRTY-NINTH SUPPLEMENTAL INDENTURE, dated as of
February 1, 1994, between Indianapolis Power & Light Company,
a corporation of the State of Indiana, hereinafter sometimes
called the "Company," party of the first part, and American
National Bank and Trust Company of Chicago, a national banking
association, as Trustee, hereinafter sometimes called the
"Trustee," party of the second part;
Whereas, the Company by a Mortgage and Deed of Trust
(hereinafter sometimes called the "Original Mortgage" when
referred to as existing prior to any supplement thereto or
modification thereof, and the "Mortgage" when referred to
as now or heretofore supplemented and modified) dated as
of May 1, 1940, made to said American National Bank and
Trust Company of Chicago, as Trustee, to secure the payment
of the bonds issued from time to time under the Mortgage
for the purposes of and subject to the limitations
specified in the Mortgage, and to secure the performance
of the covenants therein contained, conveyed to
the Trustee thereunder upon certain trusts, terms and
conditions, and with and subject to certain provisos and
covenants therein contained, all and singular the property,
rights and franchises which the Company then owned or should
thereafter acquire, excepting the property expressly excepted
by the terms of the Original Mortgage or any indenture supplemental
thereto, to which Mortgage reference is hereby made for greater
certainty; and
Whereas, the Original Mortgage has been supplemented
and modified by supplemental indentures dated as of
May 1, 1942, as of February 1, 1948, as of April
1, 1949, two as of October 1, 1949, as of February 1,
1951, as of March 1, 1953, as of June 1, 1956, as of
March 1, 1958, as of October 1, 1960, as of August 1, 1964,
as of April 1, 1966, as of May 1, 1967, as of May 1, 1968, as
of October 1, 1970, as of March 1, 1972, as of March 15,
1973, as of February 15, 1974, as of August 15, 1974,
as of September 15, 1975, as of June 1, 1976, as of July 1,
1976, as of August 1, 1977, as of September 1, 1978, two as of
August 1, 1981, as of November 1, 1983, as of November 1,
1984, as of December 1, 1984, as of September 1, 1985,
as of October 1, 1986, as of June 1, 1989, as of August 1,
1989, as of October 15, 1991, as of August 1, 1992, as of
April 1, 1993 and two as of October 1, 1993;
Whereas, Section 8 of the Original Mortgage provides,
among other things, that the form of each series of bonds
(other than the initial issue of bonds) issued thereunder
shall be established by an indenture supplemental thereto
authorized by resolution of the Board of Directors of the
Company, and that the form of each series, as established
by the Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof, and
may also contain other provisions as the Board of Directors
may, in its discretion, cause to be inserted therein expressing
or referring to the terms and conditions upon which such bonds
are to be issued and secured under the Original Mortgage or
any indenture supplemental thereto or in modification
thereof; and
Whereas, the Company now desires to provide for the
establishment, execution, authentication and delivery
under the Mortgage of bonds of a series to be known
as its "First Mortgage Bonds, 6.05% Series, due
2004" (the bonds of said series being hereinafter
sometimes referred to as the "2004 Bonds"), limited to
the aggregate principal amount of Eighty Million
Dollars ($80,000,000); and
Whereas, all things necessary to make the 2004 Bonds
hereinafter described, when duly executed by the Company
and authenticated and delivered by the Trustee, valid,
binding and legal obligations of the Company, and to make
this Thirty-Ninth Supplemental Indenture a valid and binding
agreement supplemental to the Original Mortgage, have been
done and performed; and
Whereas, the execution and delivery by the Company of
this Thirty-Ninth Supplemental Indenture, and the terms
of the 2004 Bonds, have been duly authorized by the Board
of Directors of the Company by appropriate resolutions of
said Board; and
Whereas, it is provided in and by the Original Mortgage
that the Company will execute and deliver such further
instruments and do such further acts as may be necessary
or proper to carry out more effectually the purposes of the
Mortgage, and to make subject to the lien thereof any
property thereafter acquired and intended to be subject
to the lien thereof; and
Whereas, the Company has, since the date of execution
and delivery of the Original Mortgage, purchased and
acquired property and desires by this Thirty-Ninth
Supplemental Indenture specifically to convey to
the Trustee such property for the better protection
and security of the bonds issued and to be issued under
the Original Mortgage, or any indenture supplemental thereto;
Now, Therefore, This Indenture Witnesseth that, in
consideration of the premises and of the acceptance or
purchase of the 2004 Bonds by the registered owners thereof,
and of the sum of one dollar, lawful money of the United
States of America, to the Company duly paid by the Trustee
at or before the execution and delivery of this Thirty-Ninth
Supplemental Indenture, the receipt whereof is hereby
acknowledged, the Company and the Trustee, respectively,
have entered into, executed and delivered this Thirty-Ninth
Supplemental Indenture, for the uses and purposes hereinafter
expressed, that is to say:
Section 1. The Company has granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged, pledged,
set over and confirmed, and by these presents does grant,
bargain, sell, release, convey, assign, transfer, mortgage,
pledge, set over and confirm (subject, however, to permitted
encumbrances as defined in the Original Mortgage), unto said
American National Bank and Trust Company of Chicago, as Trustee,
as herein provided, and its successors in the trusts declared
in the Original Mortgage and herein, all of the property, real,
personal and mixed, tangible and intangible, of every kind,
character and description which the Company has acquired
since the execution and delivery of the Original Mortgage and
now owns (except property, rights and assets of a character
similar to that excluded from the lien and operation of the
Mortgage by the Granting Clauses of the Original Mortgage, which
property, rights and assets are excluded from the lien and
operation of the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality of the
foregoing, the following described property situated within the
state of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired by
it after May 1, 1940, the date of the Original Mortgage, and located in
the Counties of Bartholomew, Boone, Daviess, Greene, Hamilton, Hancock,
Hendricks, Johnson, Knox, Madison, Marion, Monroe, Morgan, Owen, Pike,
Putnam, Shelby and Sullivan, State of Indiana; and any additions to or
extensions of any such systems, together with the buildings, erections,
structures, transmission lines, power stations, sub-stations, engines,
boilers, condensers, pumps, turbines, machinery, tools, conduits,
manholes, insulators, dynamos, motors, lamps, cables, wires, poles,
towers, cross-arms, piers, abutments, switchboard equipment, meters,
appliances, instruments, apparatus, appurtenances, maps, records,
ledgers, contracts, facilities and other property or equipment used
or provided for use in connection with the construction, maintenance,
repair and operation thereof; together also with all of the
rights, privileges, rights-of-way, franchises, licenses, grants,
liberties, immunities, ordinances, permits and easements of the Company
in respect of the construction, maintenance, repair and operation of
said systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired by the
Company after May 1, 1940, the date of the Original Mortgage, and
located in the City of Indianapolis, Marion County, Indiana, and any
additions to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters, engines, tanks,
pipe lines, mains, connections, service pipes, meters, tools, instruments,
appliances, apparatus, facilities, machinery and other property and
equipment used or provided for use in the construction, maintenance,
repair and operation thereof; and together also with all of the rights,
privileges, rights-of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits and easements of the Company in respect
of the construction, maintenance, repair and operation of said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances, licenses, and other
authorizations by or from any state, county, municipality, or other
governmental authority, acquired by the Company after May 1, 1940, the
date of the Original Mortgage, including particularly, but not limited to,
any indeterminate permits under the Public Service Commission Act of the
State of Indiana, and all Acts amendatory thereof and supplemental thereto,
and all right, title and interest therein now owned by the Company, and all
renewals, extensions and modifications of said indeterminate permits,
franchises, ordinances, licenses, and other authorizations, and of the
indeterminate permits, franchises, ordinances, licenses, and other
authorizations referred to in Part VII of the Granting Clauses of the
Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed (except any in the
Mortgage expressly excepted), now owned by the Company and wheresoever
situated, including (without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the foregoing or of any
general description contained in the Mortgages) all lands, flowage rights,
water rights, flumes, raceways, dams, rights-of-way and roads; all plants
for the generation of electricity by water, steam and/or other power, power
houses, telephone systems, water systems, steam heat and power plants, hot
water plants, sub-stations, transmission lines, distribution systems,
bridges, culverts and tracks; all offices, buildings and structures and the
equipment thereof; all machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors; all appliances
whether electrical, gas or mechanical, conduits, cables and lines; all pipes
whether for water, steam heat and power, or other purposes; all mains and
pipes, service pipes, fittings, valves and connections, poles, wires, tools,
implements, apparatus, furniture and chattels; all municipal franchises,
indeterminate permits, and other permits; all lines for the transportation,
transmission and/or distribution of electric current, steam heat and power
or water for any purpose, including towers, poles, wires, cables, pipes,
conduits and all apparatus for use in connection therewith; all real estate,
lands, leases, leaseholds; all contracts, whether heat, light, power, water
or street lighting contracts; all easements, servitudes, licenses, permits,
rights, powers, franchises, privileges, rights-of-way and other rights in or
relating to real estate or the occupancy of the same and (except as
hereinafter or in the Mortgage expressly excepted) all the right, title and
interest of the Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described or referred to;
Together with all and singular the tenements, hereditaments and appurte-
nances belonging or in anywise appertaining to the aforesaid property or any
part thereof, with the reversion and reversions, remainder and remainders and
(subject to the provisions of Section 64 of the Original Mortgage), the
tools, rent, revenues, issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter acquire in and
to the aforesaid property, indeterminate permits, franchises, ordinances,
licenses and other authorizations and every part and parcel thereof.
Section 2. There shall be and is hereby established a series of bonds, lim-
ited in aggregate principal amount to Eighty Million Dollars ($80,000,000) to
be issued under and secured by the Mortgage, to be designated "6.05% Series,
due 2004", each of which shall also bear the descriptive title "First
Mortgage Bonds"; said bonds shall mature on February 1, 2004, and shall be
issued only as fully registered bonds without coupons in the denomination of
one thousand dollars and any larger denomination which is a multiple
of one thousand dollars; they shall bear interest from the beginning of the
current interest period during which each bond is dated, at the rate per
annum designated in the title thereof, payable semi-annually, on February 1
and August 1 of each year; and the principal of, premium, if any, and
interest on each said bond shall be payable in lawful money of the United
States of America at the office or agency of the Company in the City of
Chicago, Illinois. The person in whose name any such bond is registered at
the close of business on any record date (as hereinafter defined) with
respect to any interest payment date shall be entitled to receive the
interest payable on such interest payment date, except if and to the extent
the Company shall default in the payment of the interest due on such interest
payment date, in which case such defaulted interest shall be paid to the
person in whose name such bond is registered on the date of payment of such
defaulted interest or on a subsequent record date for such payment if one
shall have been established as hereinafter provided. A subsequent record
date with respect to payment of interest in default may be established by or
in behalf of the Company by notice mailed to the holders of the 2004 Bonds
not less than ten (10) days preceding such record date, which record date
shall not be more than thirty (30) days prior to the subsequent interest
payment date. The term "record date" as used in this Section with respect
to any regular interest payment date shall mean the tenth day next preceding
such interest payment date, or, if such tenth day shall be a legal holiday
or a day on which banking institutions in the City of Chicago, Illinois,
are authorized by law to close, the day next succeeding such tenth day which
shall not be a legal holiday or a day on which such institutions are autho-
rized to close.
American National Bank and Trust Company of Chicago is hereby designated
and appointed the office and agency of the Company for the payment of the
principal of, premium, if any, and interest on the 2004 Bonds and for the
registration, transfer and exchange of such bonds as hereinafter provided;
all reference herein to the office or agency of the Company for the payment
of the principal of, premium, if any, and interest on the 2004 Bonds, or the
registration, transfer or exchange thereof, being to American National Bank
and Trust Company of Chicago. In the event of the resignation or inability
to act of American National Bank and Trust Company of Chicago, then a
successor agent for all such purposes in the City of Chicago, Illinois,
shall be appointed by the Board of Directors of the Company.
The 2004 Bonds shall be dated as of the date of authentication thereof,
except as otherwise provided in Section 10 of the Original Mortgage.
The 2004 Bonds shall initially be issued and held in book-entry form on
the books of the central depository system, The Depository Trust Company,
its successors, or any successor central depository system appointed by the
Company from time to time (the "Clearing Agency"). The Company and the
Trustee may, in connection herewith, do or perform or cause to be done or
performed any acts or things not adverse to the rights of the holders of the
2004 Bonds, as are necessary or appropriate to accomplish or recognize such
book-entry form 2004 Bonds.
So long as the 2004 Bonds remain and are held in book-entry form on the
books of a Clearing Agency, then (a) any such 2004 Bond may be registered
upon the books kept by the Trustee in the name of such Clearing Agency, or
any nominee thereof, including Cede & Co., as nominee of The Depository
Trust Company; (b) the Clearing Agency in whose names such 2004 Bond is so
registered shall be, and the Company and the Trustee may deem and treat
such Clearing Agency as, the absolute owner and holder of such 2004 Bond
for all purposes of the Indenture, including, without limitation, the
receiving of payment of the principal of, premium, if any, and interest on
such 2004 Bond, the receiving of notice and giving of consent; (c) neither
the Company nor the Trustee shall have any responsibility or obligation
hereunder to any direct or indirect participant, within the meaning of
Section 17A of the Securities Exchange Act of 1934, as amended, of such
Clearing Agency, or any person on behalf of which, or otherwise in respect
of which, any such participant holds any interest in any 2004 Bond,
including, without limitation, any responsibility or obligation hereunder
to maintain accurate records of any beneficial interests in any 2004 Bond
or any responsibility or obligation hereunder with respect to the receiv-
ing by such participants or the beneficial owners of payment of principal,
premium, if any, or interest on any 2004 Bonds, the receiving by such
participants or the beneficial owners of notice or the giving of consent
by such participants or the beneficial owners; and (d) the Clearing
Agency is not required to present any 2004 Bond called for partial
redemption prior to receiving payment so long as the Trustee and the
Clearing Agency have agreed to the method for noting such partial redemption.
If (a) the Company receives notice from the Clearing Agency which is cur-
rently the registered owner of the 2004 Bonds to the effect that such
Clearing Agency is unable or unwilling to discharge its responsibility as a
Clearing Agency for the 2004 Bonds or (b) the Company elects to discontinue
its use of such Clearing Agency as a Clearing Agency for the 2004 Bonds,
then the Company and Trustee each shall do or perform or cause to be done
or performed all acts or things, not adverse to the rights of the holders of
the 2004 Bonds, as are necessary or appropriate to discontinue use of such
Clearing Agency as a Clearing Agency for the 2004 Bonds and to transfer the
ownership of each of the 2004 Bonds to such person or persons, including any
other Clearing Agency, as the holder of the 2004 Bonds may direct in
accordance with the Indenture. Any expenses of such discontinuance and
transfer, including expenses of printing new certificates to evidence the
2024 Bonds, shall be paid by the Company.
So long as the 2004 Bonds remain and are held in book-entry form on the
books of a Clearing Agency, the Trustee shall be entitled to request and
rely upon a certificate or other written representation from the Clearing
Agency or any participant or indirect participant with respect to the
identity of any beneficial owners of the 2004 Bonds as of a record date
selected by the Trustee. For purposes of determining whether the consent,
advice, direction or demand of a Bondholder has been obtained, the Trustee
shall be entitled to treat the beneficial owners of the 2004 Bonds as the
Bondholders and any consent, request, direction, approval, objection or
other instrument of such beneficial owner may be obtained in the same
fashion described in the Indenture.
The 2004 Bonds shall not be subject to redemption by the Company prior to
the maturity thereof except out of monies deposited with the Trustee repre-
senting the proceeds of mortgaged and pledged property taken by the exercise
of the power of eminent domain or otherwise as provided in paragraph B of
Section 69 of the Mortgage, in which event the redemption price of the 2004
Bonds so to be redeemed shall be the principal amount of such bonds plus
accrued interest thereon to the date of redemption.
At the option of the holder, any 2004 Bond, upon surrender thereof at said
office or agency of the Company together with a written instrument of
transfer in form approved by the Company duly executed by the holder or by
his duly authorized attorney, shall be exchangeable for a like aggregate
principal amount of fully registered bonds of the same series of other
authorized denominations.
The 2004 Bonds shall be transferable on the books of the Company at said
office or agency of the Company in the City of Chicago, Illinois, by the
registered holder thereof, in person or by his duly authorized attorney,
upon surrender thereof for cancellation.
The Company shall not be required to make transfers or exchanges of any of
the 2004 Bonds for a period of ten (10) days next preceding any interest
payment date of said bonds.
No charge shall be made upon any transfer or exchange of any of the 2004
Bonds other than for any tax or taxes or other governmental charge required
to be paid by the Company.
The 2004 Bonds shall be limited to an aggregate principal amount of Eighty
Million Dollars ($80,000,000) and shall be issued under the provisions of
Article VII of the Original Mortgage.
Section 3. The 2004 Bonds, and the Trustee's Certificate to be endorsed
thereon, shall be in the following forms, respectively:
[form of face of bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 6.05% Series, Due 2004
Due February 1, 2004
No....... $......
Indianapolis Power & Light Company, a corporation of the State of Indiana
(hereinafter called the Company), for value received, hereby promises to pay
to or registered assigns, on February 1, 2004, at the office or
agency of the Company in the City of Chicago, Illinois,
Dollars in lawful money of the United States of America, and to pay
to the registered owner hereof interest thereon from the first day of
February or the first day of August next preceding the date of this bond, at
the rate of 6.05 per centum per annum in like lawful money, at said office
or agency on February 1 and August 1 in each year, until the Company's
obligation with respect to the payment of such principal shall have been
discharged. The interest payable hereunder on February 1 or August 1 will,
subject to the exception provided in Section 2 of the Thirty-Ninth
Supplemental Indenture hereinafter mentioned, be paid to the person in whose
name this bond is registered at the close of business on the record date,
which shall be the tenth day next preceding such interest payment date or,
if such tenth day shall be a legal holiday or a day on which banking
institutions in the City of Chicago, Illinois, are authorized by law to
close, the day next succeeding such tenth day which shall not be a legal
holiday or a day on which such institutions are authorized to close.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE
REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL, FOR ALL PURPOSES, HAVE THE
SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
This bond shall not become obligatory until American National Bank and
Trust Company of Chicago, the Trustee under the Mortgage, or its successor
thereunder, shall have signed the form of certificate endorsed hereon.
In Witness Whereof, Indianapolis Power & Light Company has caused this bond
to be signed in its name by its President or one of its Vice-Presidents, by
his signature or a facsimile thereof, and a facsimile of its corporate seal
to be imprinted hereon, attested by its Secretary or one of its Assistant
Secretaries, by his signature or a facsimile thereof.
Indianapolis Power & Light Company
Dated By______________________________________
President.
Attest:
By________________________
Secretary.
[form of trustee's certificate on bonds]
Trustee's Certificate
This bond is one of the bonds, of the series herein designated, provided
for in the within-mentioned Mortgage and Thirty-Ninth Supplemental Indenture.
American National Bank and
Trust Company of Chicago,
Trustee
By_____________________________________
Authorized Signature
[form of reverse side of bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 6.05% Series, Due 2004
Due February 1, 2004
This bond is one of an issue of bonds of the Company, issuable in series,
and is one of a series known as its First Mortgage Bonds, 6.05% Series, due
2004 (herein sometimes called the "2004 Bonds") limited in aggregate
principal amount to Eighty Million Dollars ($80,000,000) and established by
a Thirty-Ninth Supplemental Indenture, dated as of February 1, 1994, all
bonds of all series issued and to be issued under and equally secured
(except insofar as any sinking or other fund, established in accordance with
the provisions of the Mortgage hereinafter mentioned, may afford additional
security for the bonds of any particular series) by a Mortgage and Deed of
Trust, dated as of May 1, 1940, executed by the Company to American National
Bank and Trust Company of Chicago, as Trustee (which Mortgage and Deed of
Trust as supplemented and modified by all supplemental indentures thereto is
hereinafter referred to as the "Mortgage"), to which Mortgage reference is
made for a description of the property mortgaged and pledged, the nature and
extent of the security, the rights of the bearers or registered owners of the
bonds in respect of such security, the duties and immunities of the Trustee
and the terms and conditions upon which the bonds are secured.
With the consent of the Company and to the extent permitted by and as pro-
vided in the Mortgage, the rights and obligations of the Company and/or of
the holders of the bonds and/or coupons and/or the terms and provisions of
the Mortgage and/or any instruments supplemental thereto may be modified or
altered by affirmative vote of the holders of at least sixty-six
and two-thirds per centum (66 2/3%) in principal amount of the bonds
affected by such modification or alteration then outstanding under the
Mortgage (excluding bonds disqualified from voting by reason of the
Company's interest therein as provided in the Mortgage); provided that no
such modification or alteration shall permit the extension of the maturity
of the principal of this bond or the reduction in the rate of interest hereon
or any other modification in the terms of payment of such principal or
interest without the consent of the holder hereof. The principal hereof may
be declared or may become due and payable prior to the stated date of
maturity hereof, on the conditions, in the manner and at the time set forth
in the Mortgage, upon the occurrence of a completed default as in the
Mortgage provided.
The 2004 Bonds are issuable only in fully registered form without coupons
in the denomination of one thousand dollars and any larger denomination
which is a multiple of one thousand dollars. In the manner and upon
payment of the charges hereinafter mentioned, the 2004 Bonds, upon surrender
thereof at the office or agency of the Company in the City of Chicago,
Illinois, together with a written instrument of transfer in form approved by
the Company duly executed by the registered holder or by his duly authorized
attorney, are exchangeable for a like aggregate principal amount of fully
registered bonds of the same series of other authorized denominations.
This bond is transferable as prescribed in the Mortgage by the registered
owner hereof in person, or by his duly authorized attorney, at the office or
agency of the Company in the City of Chicago, Illinois, upon surrender and
cancellation of this bond and upon presentation of a written instrument of
transfer, duly executed and upon payment of the charges hereinafter
mentioned, and, thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the transferee in exchange
herefor as provided in the Mortgage. The Company and the Trustee may deem
and treat the person in whose name this bond is registered as the absolute
owner hereof for the purpose of receiving payment and for all other purposes.
No charge shall be made upon any transfer or exchange of any of the 2004
Bonds other than for any tax or taxes or other governmental charge required
to be paid by the Company.
The Company shall not be required to make transfers or exchanges of any of
the 2004 Bonds for a period of ten (10) days next preceding any interest pay-
ment date of said bonds.
The 2004 Bonds are not subject to redemption by the Company prior to the
maturity thereof except out of monies deposited with the Trustee representing
the proceeds of mortgaged and pledged property taken by the exercise of the
power of eminent domain or otherwise as provided in paragraph B of Section 69
of the Mortgage, in which event the redemption price of the 2004 Bonds so to
be redeemed shall be the principal amount of such bonds plus accrued interest
thereon to the date of redemption.
No recourse shall be had for the payment of the principal of or interest on
this bond against any incorporator or any past, present or future subscriber
to the capital stock, stockholder, officer or director of the Company or of
any predecessor or successor corporation, as such, either directly or through
the Company or any predecessor or successor corporation, under any rule of
law, statute or constitution or by the enforcement of any assessment or other-
wise, all such liability of incorporators, subscribers, stockholders, officers
and directors, as such, being waived and released by the terms of the Mort-
gage.
Section 4. Until the 2004 Bonds in definitive form are ready for delivery,
the Company may execute, and upon its request in writing the Trustee shall au-
thenticate and deliver, in lieu thereof, fully registered 2004 Bonds in tempo-
rary form, as provided in Section 15 of the Original Mortgage. Such bonds may,
in lieu of the statement of the specific redemption prices required to be set
forth in such bonds in definitive form, include a reference to this Thirty-
Ninth Supplemental Indenture for a statement of such redemption prices.
Section 5. The covenant of the Company to make annual payments
to the Trustee for a Maintenance and Improvement Fund as contained in Section
41 of the Original Mortgage and in the first twenty-four Supplemental Inden-
tures to the Original Mortgage creating the several series of First Mortgage
Bonds presently outstanding under such Supplemental Indentures shall not
apply to, or be for the benefit of, the 2004 Bonds, and the Company reserves
the right, without any consent of, or other action by, the holders of the
2004 Bonds, to amend, modify or delete the provisions of the Mortgage
relating to such Maintenance and Improvement Fund, and by acceptance of the
2004 Bonds, the holders thereof waive any right or privilege so to consent or
take any other action with respect thereto.
Section 6. The Company covenants that, so long as any of the 2004 Bonds
shall remain outstanding, it will comply with all of the provisions of
Section 47 of the Original Mortgage, including the provisions with respect
to limitations on dividends and distributions and the purchase and
redemption of stock.
Section 7. The Trustee hereby accepts the trusts herein declared, provided
and created and agrees to perform the same upon the terms and conditions
herein and in the Mortgage set forth and upon the following terms and
conditions:
The recitals contained herein and in the bonds shall be taken as the state-
ments of the Company, and the Trustee assumes no responsibility for the cor-
rectness of the same. The Trustee makes no representations as to the validity
or adequacy of the security afforded hereby, or as to the validity of this
Thirty-Ninth Supplemental Indenture or of the bonds issued hereunder.
Section 8. Whenever in this Thirty-Ninth Supplemental Indenture either of
the parties hereto is named or referred to, this shall, subject to the
provisions of Article XVII of the Original Mortgage, be deemed to include
the successors or assigns of such party, and all the covenants and
agreements in this Thirty-Ninth Supplemental Indenture contained by or on
behalf of the Company, or by or on behalf of the Trustee, shall, subject as
aforesaid, bind and inure to the benefit of the respective successors and
assigns of such parties, whether so expressed or not.
Section 9. Nothing in this Thirty-Ninth Supplemental Indenture, expressed
or implied, is intended or shall be construed to confer upon, or to give to,
any person, co-partnership or corporation, other than the parties hereto and
the holders of the bonds and coupons outstanding under the Mortgage, any
right, remedy, or claim under or by reason of this Thirty-Ninth Supplemental
Indenture or any covenant, condition or stipulation hereof; and all the
covenants, conditions, stipulations, promises and agreements in this
Thirty-Ninth Supplemental Indenture contained by or on behalf of the Company
shall be for the sole and exclusive benefit of the parties hereto and of the
holders of the bonds and of the coupons outstanding under the Mortgage.
Section 10. The Company covenants that all of the terms, provisions and
conditions of the Mortgage shall be applicable to the 2004 Bonds issued
hereunder, except as herein otherwise provided and except insofar as
the same may be inconsistent with the provisions of this Thirty-Ninth
Supplemental Indenture.
Section 11. This Thirty-Ninth Supplemental Indenture is dated as of
February 1, 1994, although executed and delivered on the date of
the acknowledgment hereof by the Trustee; and shall be simultaneously
executed and delivered in several counterparts, and all such counterparts
executed and delivered, each as an original, shall constitute but one and
the same instrument.
In Witness Whereof, Indianapolis Power & Light Company, party of the first
part, has caused its corporate name to be hereunto affixed and this
instrument to be signed and acknowledged by its President or a Vice-
President, and its corporate seal to be hereto affixed and attested by its
Secretary or an Assistant Secretary, for and in its behalf, and American
National Bank and Trust Company of Chicago, party of the second part, as
Trustee, has caused its corporate name to be hereunto affixed and this
instrument to be signed and acknowledged by one of its Vice-Presidents, and
its corporate seal to be hereto affixed and attested by one of its Assistant
Secretaries, all as of the day, month and year first above written.
Indianapolis Power & Light Company
(Seal)
Attest: By /s/ Marcus E. Woods
Marcus E. Woods,
Vice-President.
/s/ Clark L. Snyder
Clark L. Snyder,
Assistant Secretary.
American National Bank and Trust
Company of Chicago,
(Seal)
Attest: By /s/ Ronald B. Bremen
Ronald B. Bremen,
Vice-President.
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary.
State of Indiana )
) ss.:
County of Marion )
On this 28th day of January, in the year 1994, before me, a Notary Public
in and for the County and State aforesaid, personally came Marcus E. Woods,
Vice-President, and Clark L. Snyder, Assistant Secretary, of Indianapolis
Power & Light Company, one of the corporations described in and which
executed the foregoing instrument, to me personally known and known to
me personally to be such Vice-President, and Assistant Secretary,
respectively. Said Marcus E. Woods, and Clark L. Snyder being by me severally
duly sworn did depose and say that the said Marcus E. Woods resides in
Hendricks County, Indiana and the said Clark L. Snyder resides in Marion
County, Indiana; that said Marcus E. Woods is Vice-President and said
Clark L. Snyder is Assistant Secretary of said Indianapolis Power & Light
Company; that each of them knows the corporate seal of said corporation;
that the seal affixed to said instrument and bearing the name of said
corporation is such corporate seal; that is was so affixed by order of
the Board of Directors of said corporation; and that each of them signed his
name thereto by like order; and each of them acknowledged the execution of
said instrument on behalf of said corporation to be his free and voluntary
act and deed and the free and voluntary act and deed of said corporation, for
the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and affixed my official
seal this 28th day of January, 1994.
/s/ Gloria K. Bryant
Gloria K. Bryant
Notary Public.
My Commission Expires:
June 11, 1995
My County of Residence is:
Marion
(Notarial Seal)
State of Illinois )
) ss.:
County of Cook )
On this 27th day of January, in the year 1994, before me, a Notary Public
in and for the County and State aforesaid, personally came Ronald B. Bremen,
Vice-President, and Robert M. Selangowski, Assistant Secretary, of Ameri-
can National Bank and Trust Company of Chicago, one of the corporations de-
scribed in and which executed the foregoing instrument, to me personally
known and known to me personally to be such Vice-President and Assistant
Secretary, respectively. Said Ronald B. Bremen, and Robert M. Selangowski,
being by me severally sworn did depose and say that the said Ronald
B. Bremen, resides in Glencoe, Illinois, and that the said Robert M.
Selangowski resides in Lansing, Illinois; that said Ronald B. Bremen is
Vice-President and said Robert M. Selangowski is Assistant Secretary of said
American National Bank and Trust Company of Chicago; that each of them knows
the corporate seal of said corporation; that the seal affixed to said
instrument and bearing the name of said corporation is such corporate seal;
that is was so affixed by authority of the Board of Directors of said
corporation; that each of them signed his name thereto by like authority; and
each of them acknowledged the execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and the free and
voluntary act and deed of said corporation, for the uses and purposes
therein set forth.
In Witness Whereof, I have hereunto set my hand and affixed my official
seal this 27th day of January, 1994.
/s/ Bernadette G. Janairo
Bernadette G. Janairo
Notary Public.
(Notarial Seal)
My Commission Expires: May 22, 1994
My County of Residence is:
Cook
This instrument was prepared by
Marcus E. Woods,
Attorney at Law
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
TRUSTEE
---------------
FORTIETH SUPPLEMENTAL INDENTURE
---------------
DATED AS OF FEBRUARY 1, 1994
ESTABLISHING FIRST MORTGAGE BONDS,
7.05% SERIES, DUE 2024
TABLE OF CONTENTS*
OF
FORTIETH SUPPLEMENTAL INDENTURE
OF
INDIANAPOLIS POWER & LIGHT COMPANY
PAGE
----
Parties.................................................. 1
Recitals................................................. 1
Section 1 Granting clauses............................. 3
Part I Electric Distributing Systems..... 3
Part II Steam and Hot Water Distributing
Systems......................... 4
Part III Indeterminate Permits and
Franchises...................... 4
Part IV Other Property.................... 5
General and after-acquired title........... 6
Section 2 Designation of thirty-eighth series of bonds
and kind and denominations thereof......... 6
Record date for payment of interest.......... 7
Designation of American National Bank and
Trust Company of Chicago as paying
agent...................................... 7
Bonds issued in book-entry form.............. 7
Exchange of bonds............................ 10
Transfer of bonds............................ 10
Series limited to $100,000,000............... 10
Section 3 Form of fully registered bond................ 10
Form of Trustee's certificate on bonds....... 12
Section 4 Temporary bonds.............................. 15
Section 5 Annual Payments for Maintenance and
Improvement Fund........................... 16
Section 6 Compliance with Section 47 of Original
Mortgage with respect to dividend
restrictions............................... 16
Section 7 Acceptance of trusts by Trustee and
conditions of acceptance................... 16
Section 8 Successors and assigns....................... 16
Section 9 Limitation of rights hereunder............... 17
______________________________
*Table of Contents is not part of the Fortieth Supplemental
Indenture and should not be considered such. It is included
herein only for purposes of convenient reference.
PAGE
----
Section 10 Compliance with terms, provisions and
conditions of Mortgage..................... 17
Section 11 Execution in counterparts.................... 17
Testimonium.............................................. 18
Signatures and Seals..................................... 18
Acknowledgements......................................... 19
ii
THIS FORTIETH SUPPLEMENTAL INDENTURE, dated as of February 1, 1994,
between Indianapolis Power & Light Company, a corporation of the
State of Indiana, hereinafter sometimes called the "Company," party of the
first part, and American National Bank and Trust Company of Chicago, a
national banking association, as Trustee, hereinafter sometimes called the
"Trustee," party of the second part;
Whereas, the Company by a Mortgage and Deed of Trust (hereinafter
sometimes called the "Original Mortgage" when referred to as existing
prior to any supplement thereto or modification thereof, and the
"Mortgage" when referred to as now or heretofore supplemented and modified)
dated as of May 1, 1940, made to said American National Bank and Trust
Company of Chicago, as Trustee, to secure the payment of the bonds issued
from time to time under the Mortgage for the purposes of and subject to the
limitations specified in the Mortgage, and to secure the performance of the
covenants therein contained, conveyed to the Trustee thereunder upon certain
trusts, terms and conditions, and with and subject to certain provisos and
covenants therein contained, all and singular the property, rights and
franchises which the Company then owned or should thereafter acquire,
excepting the property expressly excepted by the terms of the Original
Mortgage or any indenture supplemental thereto, to which Mortgage reference
is hereby made for greater certainty; and
Whereas, the Original Mortgage has been supplemented and modified by
supplemental indentures dated as of May 1, 1942, as of February 1, 1948, as
of April 1, 1949, two as of October 1, 1949, as of February 1, 1951, as of
March 1, 1953, as of June 1, 1956, as of March 1, 1958, as of October 1,
1960, as of August 1, 1964, as of April 1, 1966, as of May 1, 1967, as of
May 1, 1968, as of October 1, 1970, as of March 1, 1972, as of March 15,
1973, as of February 15, 1974, as of August 15, 1974, as of September 15,
1975, as of June 1, 1976, as of July 1, 1976, as of August 1, 1977, as of
September 1, 1978, two as of August 1, 1981, as of November 1, 1983, as of
November 1, 1984, as of December 1, 1984, as of September 1, 1985, as of
October 1, 1986, as of June 1, 1989, as of August 1, 1989, as of October 15,
1991, as of August 1, 1992, as of April 1, 1993, two as of October 1, 1993
and as of February 1, 1994.
Whereas, Section 8 of the Original Mortgage provides, among other things,
that the form of each series of bonds (other than the initial issue of bonds)
issued thereunder shall be established by an
indenture supplemental thereto authorized by resolution of the Board of
Directors of the Company, and that the form of each series, as established
by the Board of Directors, shall specify the descriptive title of the bonds
and various other terms thereof, and may also contain other provisions as
the Board of Directors may, in its discretion, cause to be inserted therein
expressing or referring to the terms and conditions upon which such bonds
are to be issued and secured under the Original Mortgage or any indenture
supplemental thereto or in modification thereof; and
Whereas, the Company now desires to provide for the establishment, execu-
tion, authentication and delivery under the Mortgage of bonds of a series to
be known as its "First Mortgage Bonds, 7.05% Series, due 2024" (the bonds of
said series being hereinafter sometimes referred to as the "2024 Bonds"), lim-
ited to the aggregate principal amount of One Hundred Million Dollars
($100,000,000); and
Whereas, all things necessary to make the 2024 Bonds hereinafter described,
when duly executed by the Company and authenticated and delivered by the
Trustee, valid, binding and legal obligations of the Company, and to make this
Fortieth Supplemental Indenture a valid and binding agreement supplemental to
the Original Mortgage, have been done and performed; and
Whereas, the execution and delivery by the Company of this Fortieth Supple-
mental Indenture, and the terms of the 2024 Bonds, have been duly authorized
by the Board of Directors of the Company by appropriate resolutions of said
Board; and
Whereas, it is provided in and by the Original Mortgage that the Company
will execute and deliver such further instruments and do such further acts as
may be necessary or proper to carry out more effectually the purposes of the
Mortgage, and to make subject to the lien thereof any property thereafter ac-
quired and intended to be subject to the lien thereof; and
Whereas, the Company has, since the date of execution and delivery of the
Original Mortgage, purchased and acquired property and desires by this Forti-
eth Supplemental Indenture specifically to convey to the Trustee such
property for the better protection and security of the bonds issued and to
be issued under the Original Mortgage, or any indenture supplemental thereto;
Now, Therefore, This Indenture Witnesseth that, in consideration of the
premises and of the acceptance or purchase of the 2024 Bonds by the
registered owners thereof, and of the sum of one dollar, lawful money
of the United States of America, to the Company duly paid by the Trustee at
or before the execution and delivery of this Fortieth Supplemental Indenture,
the receipt whereof is hereby acknowledged, the Company and the Trustee,
respectively, have entered into, executed and delivered this Fortieth
Supplemental Indenture, for the uses and purposes hereinafter expressed,
that is to say:
Section 1. The Company has granted, bargained, sold, released, conveyed, as-
signed, transferred, mortgaged, pledged, set over and confirmed, and by these
presents does grant, bargain, sell, release, convey, assign, transfer, mort-
gage, pledge, set over and confirm (subject, however, to permitted
encumbrances as defined in the Original Mortgage), unto said American
National Bank and Trust Company of Chicago, as Trustee, as herein provided,
and its successors in the trusts declared in the Original Mortgage and
herein, all of the property, real, personal and mixed, tangible and
intangible, of every kind, character and description which the Company has
acquired since the execution and delivery of the Original Mortgage and now
owns (except property, rights and assets of a character similar to that
excluded from the lien and operation of the Mortgage by the Granting Clauses
of the Original Mortgage, which property, rights and assets are excluded from
the lien and operation of the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality of the foregoing,
the following described property situated within the state of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired by it after May 1,
1940, the date of the Original Mortgage, and located in the Counties of Bar-
tholomew, Boone, Daviess, Greene, Hamilton, Hancock, Hendricks, John-
son, Knox, Madison, Marion, Monroe, Morgan, Owen, Pike, Putnam, Shelby and
Sullivan, State of Indiana; and any additions to or extensions of any such
systems, together with the buildings, erections, structures, transmission
lines, power stations, sub-stations, engines, boilers, condensers, pumps,
turbines, machinery, tools, conduits, manholes, insulators, dynamos, motors,
lamps, cables, wires, poles, towers, cross-arms, piers, abutments,
switchboard equipment, meters, appliances, instruments, apparatus,
appurtenances, maps, records, ledgers, contracts, facilities and other
property or equipment used or provided for use in connection with the
construction, maintenance, repair and operation thereof; together also with
all of the rights, privileges, rights-of-way, franchises, licenses, grants,
liberties, immunities, ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and operation of said
systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired by the Company af-
ter May 1, 1940, the date of the Original Mortgage, and located in the City
of Indianapolis, Marion County, Indiana, and any additions to or extensions of
any such systems; together with the buildings, erections, structures, boilers,
heaters, engines, tanks, pipe lines, mains, connections, service pipes,
meters, tools, instruments, appliances, apparatus, facilities, machinery and
other property and equipment used or provided for use in the construction,
maintenance, repair and operation thereof; and together also with all of the
rights, privileges, rights-of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits and easements of the Company in respect of
the construction, maintenance, repair and operation of said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances, licenses, and other
authorizations by or from any state, county, municipality, or other
governmental authority, acquired by the Company after May 1, 1940, the
date of the Original Mortgage, including particularly, but not limited to,
any indeterminate permits under the Public Service Commission Act of the
State of Indiana, and all Acts amendatory thereof and supplemental thereto,
and all right, title and interest therein now owned by the Company, and all
renewals, extensions and modifications of said indeterminate permits,
franchises, ordinances, licenses, and other authorizations, and of the
indeterminate permits, franchises, ordinances, licenses, and other
authorizations referred to in Part VII of the Granting Clauses of the
Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed (except any in the Mort-
gage expressly excepted), now owned by the Company and wheresoever situated,
including (without in anywise limiting or impairing by the enumeration of the
same the scope and intent of the foregoing or of any general description con-
tained in the Mortgages) all lands, flowage rights, water rights, flumes,
raceways, dams, rights-of-way and roads; all plants for the generation of
electricity by water, steam and/or other power, power houses, telephone
systems, water systems, steam heat and power plants, hot water plants,
sub-stations, transmission lines, distribution systems, bridges, culverts and
tracks; all offices, buildings and structures and the equipment thereof; all
machinery, engines, boilers, dynamos, machines, regulators, meters,
transformers, generators and motors; all appliances whether electrical, gas
or mechanical, conduits, cables and lines; all pipes whether for water, steam
heat and power, or other purposes; all mains and pipes, service pipes,
fittings, valves and connections, poles, wires, tools, implements, apparatus,
furniture and chattels; all municipal franchises, indeterminate permits, and
other permits; all lines for the transportation, transmission and/or
distribution of electric current, steam heat and power or water for any
purpose, including towers, poles, wires, cables, pipes, conduits and all
apparatus for use in connection therewith; all real estate, lands, leases,
leaseholds; all contracts, whether heat, light, power, water or street
lighting contracts; all easements, servitudes, licenses, permits, rights,
powers, franchises, privileges, rights-of-way and other rights in or
relating to real estate or the occupancy of the same and (except as here-
inafter or in the Mortgage expressly excepted) all the right, title and
interest of the Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore described or referred to;
Together with all and singular the tenements, hereditaments and appurte-
nances belonging or in anywise appertaining to the aforesaid property or any
part thereof, with the reversion and reversions, remainder and remainders and
(subject to the provisions of Section 64 of the Original Mortgage), the
tools, rent, revenues, issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter acquire in and
to the aforesaid property, indeterminate permits, franchises, ordinances,
licenses and other authorizations and every part and parcel thereof.
Section 2. There shall be and is hereby established a series of bonds, lim-
ited in aggregate principal amount to One Hundred Million Dollars
($100,000,000) to be issued under and secured by the Mortgage, to be desig-
nated "7.05% Series, due 2024", each of which shall also bear the descriptive
title "First Mortgage Bonds"; said bonds shall mature on February 1, 2024,
and shall be issued only as fully registered bonds without coupons in the
denomination of one thousand dollars and any larger denomination which is a
multiple of one thousand dollars; they shall bear interest from the
beginning of the current interest period during which each bond is dated,
at the rate per annum designated in the title thereof, payable semi-annually,
on February 1 and August 1 of each year; and the principal of, premium, if
any, and interest on each said bond shall be payable in lawful money of the
United States of America at the office or agency of the Company in the City
of Chicago, Illinois. The person in whose name any such bond is registered at
the close of business on any record date (as hereinafter defined) with
respect to any interest payment date shall be entitled to receive the
interest payable on such interest payment date, except if and to the extent
the Company shall default in the payment of the interest due on such interest
payment date, in which case such defaulted interest shall be paid to the
person in whose name such bond is registered on the date of payment of such
defaulted interest or on a subsequent record date for such payment if one
shall have been established as hereinafter provided. A subsequent record
date with respect to payment of interest in default may be established by or
in behalf of the Company by notice mailed to the holders of the 2024 Bonds
not less than ten (10) days preceding such record date, which record date
shall not be more than thirty (30) days prior to the subsequent interest
payment date. The term "record date" as used in this Section with respect to
any regular interest payment date shall mean the tenth day next preceding
such interest payment date, or, if such tenth day shall be a legal holiday
or a day on which banking institutions in the City of Chicago, Illinois, are
authorized by law to close, the day next succeeding such tenth day which
shall not be a legal holiday or a day on which such institutions are
authorized to close.
American National Bank and Trust Company of Chicago is hereby designated
and appointed the office and agency of the Company for the payment of the
principal of, premium, if any, and interest on the 2024 Bonds and
for the registration, transfer and exchange of such bonds as hereinafter
provided; all reference herein to the office or agency of the Company for
the payment of the principal of, premium, if any, and interest on the 2024
Bonds, or the registration, transfer or exchange thereof, being to American
National Bank and Trust Company of Chicago. In the event of the resignation
or inability to act of American National Bank and Trust Company of Chicago,
then a successor agent for all such purposes in the City of Chicago,
Illinois, shall be appointed by the Board of Directors of the Company.
The 2024 Bonds shall be dated as of the date of authentication thereof, ex-
cept as otherwise provided in Section 10 of the Original Mortgage.
The 2024 Bonds shall initially be issued and held in book-entry form on the
books of the central depository system, The Depository Trust Company, its suc-
cessors, or any successor central depository system appointed by the Company
from time to time (the "Clearing Agency"). The Company and the Trustee may,
in connection herewith, do or perform or cause to be done or performed any
acts or things not adverse to the rights of the holders of the 2024 Bonds,
as are necessary or appropriate to accomplish or recognize such
book-entry form 2024 Bonds.
So long as the 2024 Bonds remain and are held in book-entry form on the
books of a Clearing Agency, then (a) any such 2024 Bond may be registered
upon the books kept by the Trustee in the name of such Clearing Agency, or
any nominee thereof, including Cede & Co., as nominee of The Depository
Trust Company; (b) the Clearing Agency in whose names such 2024 Bond is so
registered shall be, and the Company and the Trustee may deem and treat such
Clearing Agency as, the absolute owner and holder of such 2024 Bond for all
purposes of the Indenture, including, without limitation, the receiving of
payment of the principal of, premium, if any, and interest on such 2024
Bond, the receiving of notice and giving of consent; (c) neither the Company
nor the Trustee shall have any responsibility or obligation hereunder to any
direct or indirect participant, within the meaning of Section 17A of the
Securities Exchange Act of 1934, as amended, of such Clearing Agency, or any
person on behalf of which, or otherwise in respect of which, any such
participant holds any interest in any 2024 Bond, including, without
limitation, any responsibility or obligation hereunder to maintain accurate
records of any beneficial interests in any 2024 Bond or any responsibility
or obligation hereunder with respect to the receiving by such participants
or the beneficial owners of payment of principal, premium, if any, or
interest on any 2024 Bonds, the receiving by such participants or the
beneficial owners of notice or the giving of consent by such participants or
the beneficial owners; and (d) the Clearing Agency is not required to present
any 2024 Bond called for partial redemption prior to receiving payment so
long as the Trustee and the Clearing Agency have agreed to the method for
noting such partial redemption.
If (a) the Company receives notice from the Clearing Agency which is cur-
rently the registered owner of the 2024 Bonds to the effect that such
Clearing Agency is unable or unwilling to discharge its responsibility as a
Clearing Agency for the 2024 Bonds or (b) the Company elects to discontinue
its use of such Clearing Agency as a Clearing Agency for the 2024 Bonds, then
the Company and Trustee each shall do or perform or cause to be done or
performed all acts or things, not adverse to the rights of the holders of
the 2024 Bonds, as are necessary or appropriate to discontinue use of such
Clearing Agency as a Clearing Agency for the 2024 Bonds and to transfer the
ownership of each of the 2024 Bonds to such person or persons, including any
other Clearing Agency, as the holder of the 2024 Bonds may direct in
accordance with the Indenture. Any expenses of such discontinuance and
transfer, including expenses of printing new certificates to evidence the
2024 Bonds, shall be paid by the Company.
So long as the 2024 Bonds remain and are held in book-entry form on the
books of a Clearing Agency, the Trustee shall be entitled to request and rely
upon a certificate or other written representation from the Clearing Agency
or any participant or indirect participant with respect to the identity of
any beneficial owners of the 2024 Bonds as of a record date selected by the
Trustee. For purposes of determining whether the consent, advice, direction
or demand of a Bondholder has been obtained, the Trustee shall be entitled to
treat the beneficial owners of the 2024 Bonds as the Bondholders and any
consent, request, direction, approval, objection or other instrument of such
beneficial owner may be obtained in the same fashion described in the
Indenture.
Upon the notice and in the manner and with the effect provided in the Mort-
gage and in this Section 2, the 2024 Bonds shall be redeemable prior to the
maturity thereof, as a whole at any time or in part from time to time, at the
option of the Company, at the principal amount thereof and accrued interest to
the date of redemption, and at the redemption prices set forth under the head-
ing "Redemption Price" in the form of 2024 Bonds hereinafter recited, if re-
deemed otherwise than in the manner provided in the next paragraph, provided,
however, that none of the 2024 Bonds may be redeemed prior to February 1,
2004.
Upon the notice and in the manner and with the effect provided in the Mort-
gage and in this Section 2, the 2024 Bonds shall be redeemable by the Company
prior to the maturity thereof out of monies deposited with the Trustee repre-
senting the proceeds of mortgaged and pledged property taken by the exercise
of the power of eminent domain or otherwise as provided in paragraph B of Sec-
tion 69 of the Mortgage, at the principal amount of the 2024 Bonds as to be
redeemed and accrued interest to the date of redemption.
The notice required for the redemption of the 2024 Bonds shall be as pro-
vided in Section 59 of the Mortgage.
At the option of the holder, any 2024 Bond, upon surrender thereof at said
office or agency of the Company together with a written instrument of
transfer in form approved by the Company duly executed by the holder or by
his duly authorized attorney, shall be exchangeable for a like aggregate
principal amount of fully registered bonds of the same series of other
authorized denominations.
The 2024 Bonds shall be transferable on the books of the Company at said of-
fice or agency of the Company in the City of Chicago, Illinois, by the regis-
tered holder thereof, in person or by his duly authorized attorney, upon sur-
render thereof for cancellation.
The Company shall not be required to make transfers or exchanges of any of
the 2024 Bonds for a period of ten (10) days next preceding any interest
payment date of said bonds.
No charge shall be made upon any transfer or exchange of any of the 2024
Bonds other than for any tax or taxes or other governmental charge required
to be paid by the Company.
The 2024 Bonds shall be limited to an aggregate principal amount of One Hun-
dred Million Dollars ($100,000,000) and shall be issued under the provisions
of Article VI of the Original Mortgage.
Section 3. The 2024 Bonds, and the Trustee's Certificate to be endorsed
thereon, shall be in the following forms, respectively:
[form of face of bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 7.05% Series, Due 2024
Due February 1, 2024
No....... $......
Indianapolis Power & Light Company, a corporation of the State of Indiana
(hereinafter called the Company), for value received, hereby promises to pay
to or registered assigns, on February 1, 2024, at the office or
agency of the Company in the City of Chicago, Illinois, Dollars in
lawful money of the United States of America, and to pay to the registered
owner hereof interest thereon from the first day of February or the first day
of August next preceding the date of this bond, at the rate of 7.05 per
centum per annum in like lawful money, at said office or agency on February
1 and August 1 in each year, until the Company's obligation with respect to
the payment of such principal shall have been discharged. The interest
payable hereunder on February 1 or August 1 will, subject to the exception
provided in Section 2 of the Fortieth Supplemental Indenture hereinafter
mentioned, be paid to the person in whose name this bond is registered
at the close of business on the record date, which shall be the tenth day
next preceding such interest payment date or, if such tenth day shall be a
legal holiday or a day on which banking institutions in the City of Chicago,
Illinois, are authorized by law to close, the day next succeeding such tenth
day which shall not be a legal holiday or a day on which such institutions
are authorized to close.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE
REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL, FOR ALL PURPOSES, HAVE THE
SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
This bond shall not become obligatory until American National Bank and Trust
Company of Chicago, the Trustee under the Mortgage, or its successor thereun-
der, shall have signed the form of certificate endorsed hereon.
In Witness Whereof, Indianapolis Power & Light Company has caused this bond
to be signed in its name by its President or one of its Vice-Presidents, by
his signature or a facsimile thereof, and a facsimile of its corporate seal
to be imprinted hereon, attested by its Secretary or one of its Assistant
Secretaries, by his signature or a facsimile thereof.
Indianapolis Power & Light Company
Dated..................... By......................................
President.
Attest:
By......................................
Secretary.
[form of trustee's certificate on bonds]
Trustee's Certificate
This bond is one of the bonds, of the series herein designated, provided for
in the within-mentioned Mortgage and Fortieth Supplemental Indenture.
American National Bank and Trust
Company of Chicago, Trustee
By......................................
Authorized Signature
[form of reverse side of bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 7.05% Series, Due 2024
Due February 1, 2024
This bond is one of an issue of bonds of the Company, issuable in series,
and is one of a series known as its First Mortgage Bonds, 7.05% Series, due
2024 (herein sometimes called the "2024 Bonds") limited in aggregate principal
amount to One Hundred Million Dollars ($100,000,000) and established by a For-
tieth Supplemental Indenture, dated as of February 1, 1994, all bonds of all
series issued and to be issued under and equally secured (except insofar as
any sinking or other fund, established in accordance with the provisions of
the Mortgage hereinafter mentioned, may afford additional security for the
bonds of any particular series) by a Mortgage and Deed of Trust, dated as of
May 1, 1940, executed by the Company to American National Bank and Trust Com-
pany of Chicago, as Trustee (which Mortgage and Deed of Trust as supplemented
and modified by all supplemental indentures thereto is hereinafter referred to
as the "Mortgage"), to which Mortgage reference is made for a description of
the property mortgaged and pledged, the nature and extent of the security,
the rights of the bearers or registered owners of the bonds in respect of
such security, the duties and immunities of the Trustee and the terms and
conditions Upon which the bonds are secured.
With the consent of the Company and to the extent permitted by and as pro-
vided in the Mortgage, the rights and obligations of the Company and/or of the
holders of the bonds and/or coupons and/or the terms and provisions of the
Mortgage and/or any instruments supplemental thereto may be modified or al-
tered by affirmative vote of the holders of at least sixty-six and two-thirds
per centum (66 2/3%) in principal amount of the bonds affected by such modifi-
cation or alteration then outstanding under the Mortgage (excluding bonds dis-
qualified from voting by reason of the Company's interest therein as provided
in the Mortgage); provided that no such modification or alteration shall per-
mit the extension of the maturity of the principal of this bond or the reduc-
tion in the rate of interest hereon or any other modification in the terms
of payment of such principal or interest without the consent of the holder
hereof. The principal hereof may be declared or may become due and payable
prior to the stated date of maturity hereof, on the conditions, in the manner
and at the time set forth in the Mortgage, upon the occurrence of a completed
default as in the Mortgage provided.
The 2024 Bonds are issuable only in fully registered form without coupons in
the denomination of one thousand dollars and any larger denomination which is a
multiple of one thousand dollars. In the manner and upon payment of the
charges hereinafter mentioned, the 2024 Bonds, upon surrender thereof at the
office or agency of the Company in the City of Chicago, Illinois, together
with a written instrument of transfer in form approved by the Company
duly executed by the registered holder or by his duly authorized attorney,
are exchangeable for a like aggregate principal amount of fully registered
bonds of the same series of other authorized denominations.
This bond is transferable as prescribed in the Mortgage by the registered
owner hereof in person, or by his duly authorized attorney, at the office or
agency of the Company in the City of Chicago, Illinois, upon surrender and
cancellation of this bond and upon presentation of a written instrument of
transfer, duly executed and upon payment of the charges hereinafter
mentioned, and, thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the transferee in exchange
herefor as provided in the Mortgage. The Company and the Trustee may deem
and treat the person in whose name this bond is registered as the absolute
owner hereof for the purpose of receiving payment and for all other purposes.
No charge shall be made upon any transfer or exchange of any of the 2024
Bonds other than for any tax or taxes or other governmental charge required to
be paid by the Company.
The Company shall not be required to make transfers or exchanges of any of
the 2024 Bonds for a period of ten (10) days next preceding any interest pay-
ment date of said bonds.
The 2024 Bonds are subject to redemption prior to the maturity thereof, as
a whole at any time or in part from time to time, at the option of the
Company, at the redemption prices set forth below under the heading "Redemp-
tion Price" plus accrued interest to the date of redemption if redeemed other-
wise than in the manner provided in the next paragraph, provided, however,
that none of the 2024 Bonds may be redeemed prior to February 1, 2004.
IF REDEEMED
DURING THE TWELVE
MONTHS' PERIOD
ENDING WITH THE
THIRTY-FIRST DAY
OF JANUARY OF THE REDEMPTION
YEAR STATED PRICE
- ------------------- ----------
2005......... 103.31%
2006......... 102.98%
2007......... 102.65%
2008......... 102.32%
2009......... 101.99%
IF REDEEMED
DURING THE TWELVE
MONTHS' PERIOD
ENDING WITH THE
THIRTY-FIRST DAY
OF JANUARY OF THE REDEMPTION
YEAR STATED PRICE
- ------------------- ----------
2010......... 101.66%
2011......... 101.32%
2012......... 100.99%
2013......... 100.66%
2014......... 100.33%
and 100% if redeemed after January 31, 2014.
Upon the notice and in the manner and with the effect provided in the
Mortgage and in this Section 2, the 2024 Bonds shall be redeemable by the
Company prior to the maturity thereof out of monies deposited with the
Trustee representing the proceeds of mortgaged and pledged property taken by
the exercise of the power of eminent domain or otherwise as provided in
paragraph B of Section 69 of the Mortgage, at the principal amount of the
2024 Bonds as to be redeemed and accrued interest to the date of redemption.
No recourse shall be had for the payment of the principal of or interest on
this bond against any incorporator or any past, present or future subscriber
to the capital stock, stockholder, officer or director of the Company or of
any predecessor or successor corporation, as such, either directly or through
the Company or any predecessor or successor corporation, under any rule of
law, statute or constitution or by the enforcement of any assessment or other-
wise, all such liability of incorporators, subscribers, stockholders, officers
and directors, as such, being waived and released by the terms of the Mort-
gage.
Section 4. Until the 2024 Bonds in definitive form are ready for delivery,
the Company may execute, and upon its request in writing the Trustee shall
authenticate and deliver, in lieu thereof, fully registered 2024 Bonds in tem-
porary form, as provided in Section 15 of the Original Mortgage. Such bonds
may, in lieu of the statement of the specific redemption prices required to be
set forth in such bonds in definitive form, include a reference to this Forti-
eth Supplemental Indenture for a statement of such redemption prices.
Section 5. The covenant of the Company to make annual payments to the
Trustee for a Maintenance and Improvement Fund as contained in Section 41 of
the Original Mortgage and in the first twenty-four Supplemental Indentures to
the Original Mortgage creating the several series of First Mortgage Bonds
presently outstanding under such Supplemental Indentures shall not apply to,
or be for the benefit of, the 2024 Bonds, and the Company reserves the
right, without any consent of, or other action by, the holders of the 2024
Bonds, to amend, modify or delete the provisions of the Mortgage relating to
such Maintenance and Improvement Fund, and by acceptance of the 2024 Bonds,
the holders thereof waive any right or privilege so to consent or take any
other action with respect thereto.
Section 6. The Company covenants that, so long as any of the 2024 Bonds
shall remain outstanding, it will comply with all of the provisions of
Section 47 of the Original Mortgage, including the provisions with
respect to limitations on dividends and distributions and the purchase and
redemption of stock.
Section 7. The Trustee hereby accepts the trusts herein declared, provided
and created and agrees to perform the same upon the terms and conditions herein
and in the Mortgage set forth and upon the following terms and conditions:
The recitals contained herein and in the bonds shall be taken as the state-
ments of the Company, and the Trustee assumes no responsibility for the cor-
rectness of the same. The Trustee makes no representations as to the validity
or adequacy of the security afforded hereby, or as to the validity of this
Fortieth Supplemental Indenture or of the bonds issued hereunder.
Section 8. Whenever in this Fortieth Supplemental Indenture either of the
parties hereto is named or referred to, this shall, subject to the provisions
of Article XVII of the Original Mortgage, be deemed to include the successors
or assigns of such party, and all the covenants and agreements in this
Fortieth Supplemental Indenture contained by or on behalf of the Company, or
by or on behalf of the Trustee, shall, subject as aforesaid, bind and inure
to the benefit of the respective successors and assigns of such parties,
whether so expressed or not.
Section 9. Nothing in this Fortieth Supplemental Indenture, expressed or im-
plied, is intended or shall be construed to confer upon, or to give to, any
person, co-partnership or corporation, other than the parties hereto and the
holders of the bonds and coupons outstanding under the Mortgage, any right,
remedy, or claim under or by reason of this Fortieth Supplemental Indenture
or any covenant, condition or stipulation hereof; and all the covenants,
conditions, stipulations, promises and agreements in this Fortieth
Supplemental Indenture contained by or on behalf of the Company shall be
for the sole and exclusive benefit of the parties hereto and of the holders
of the bonds and of the coupons outstanding under the Mortgage.
Section 10. The Company covenants that all of the terms, provisions and con-
ditions of the Mortgage shall be applicable to the 2024 Bonds issued hereunder,
except as herein otherwise provided and except insofar as the same may be in-
consistent with the provisions of this Fortieth Supplemental Indenture.
Section 11. This Fortieth Supplemental Indenture is dated as of February 1,
1994, although executed and delivered on the date of the acknowledgment hereof
by the Trustee; and shall be simultaneously executed and delivered in several
counterparts, and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
In Witness Whereof, Indianapolis Power & Light Company, party of the first
part, has caused its corporate name to be hereunto affixed and this
instrument to be signed and acknowledged by its President or a Vice-
President, and its corporate seal to be hereto affixed and attested by its
Secretary or an Assistant Secretary, for and in its behalf, and American
National Bank and Trust Company of Chicago, party of the second part, as
Trustee, has caused its corporate name to be hereunto affixed and this
instrument to be signed and acknowledged by one of its Vice-Presidents, and
its corporate seal to be hereto affixed and attested by one of its Assistant
Secretaries, all as of the day, month and year first above written.
Indianapolis Power & Light Company
(Seal)
Attest: By /s/ Marcus E. Woods
Marcus E. Woods,
Vice-President.
/s/ Clark L. Snyder
Clark L. Snyder,
Assistant Secretary.
American National Bank and Trust
Company of Chicago,
(Seal)
Attest: By /s/ Ronald B. Bremen
Ronald B. Bremen,
Vice-President.
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary.
State of Indiana )
) ss.:
County of Marion )
On this 28th day of January, in the year 1994, before me, a Notary Public in
and for the County and State aforesaid, personally came Marcus E. Woods, Vice-
President, and Clark L. Snyder, Assistant Secretary, of Indianapolis Power &
Light Company, one of the corporations described in and which executed the
foregoing instrument, to me personally known and known to me personally to be
such Vice-President, and Assistant Secretary, respectively. Said Marcus E.
Woods, and Clark L. Snyder being by me severally duly sworn did depose and say
that the said Marcus E. Woods resides in Hendricks County, Indiana and the
said Clark L. Snyder resides in Marion County, Indiana; that said Marcus E.
Woods is Vice-President and said Clark L. Snyder is Assistant Secretary of
said Indianapolis Power & Light Company; that each of them knows the
corporate seal of said corporation; that the seal affixed to said instrument
and bearing the name of said corporation is such corporate seal; that is was
so affixed by order of the Board of Directors of said corporation; and that
each of them signed his name thereto by like order; and each of them
acknowledged the execution of said instrument on behalf of said corporation
to be his free and voluntary act and deed and the free and voluntary act and
deed of said corporation, for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and affixed my official
seal this 28th day of January, 1994.
/s/ Gloria K. Bryant
Gloria K. Bryant
Notary Public.
My Commission Expires:
June 11, 1995
My County of Residence is:
Marion
(Notarial Seal)
State of Illinois )
) ss.:
County of Cook )
On this 27th day of January, in the year 1994, before me, a Notary Public in
and for the County and State aforesaid, personally came Ronald B. Bremen, Vice-
President, and Robert M. Selangowski, Assistant Secretary, of American
National Bank and Trust Company of Chicago, one of the corporations
described in and which executed the foregoing instrument, to me personally
known and known to me personally to be such Vice-President and Assistant
Secretary, respectively. Said Ronald B. Bremen, and Robert M. Selangowski,
being by me severally sworn did depose and say that the said Ronald B.
Bremen, resides in Glencoe, Illinois, and that the said Robert M. Selangowski
resides in Lansing, Illinois; that said Ronald B. Bremen is Vice-President
and said Robert M. Selangowski is Assistant Secretary of said American
National Bank and Trust Company of Chicago; that each of them knows the
corporate seal of said corporation; that the seal affixed to said instrument
and bearing the name of said corporation is such corporate seal; that is was
so affixed by authority of the Board of Directors of said corporation; that
each of them signed his name thereto by like authority; and each of them
acknowledged the execution of said instrument on behalf of said corporation
to be his free and voluntary act and deed and the free and voluntary act and
deed of said corporation, for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and affixed my official
seal this 27th day of January, 1994.
/s/ Bernadette G. Janairo
Bernadette G. Janairo
Notary Public.
(Notarial Seal)
My Commission Expires: May 22, 1994
My County of Residence is:
Cook
This instrument was prepared by
Marcus E. Woods,
Attorney at Law
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
TRUSTEE
FORTY-FIRST SUPPLEMENTAL INDENTURE
Dated as of January 15, 1995
ESTABLISHING FIRST MORTGAGE BONDS,
6-5.8% Series, Due 2024
TABLE OF CONTENTS*
of
FORTY-FIRST SUPPLEMENTAL INDENTURE
of
INDIANAPOLIS POWER & LIGHT COMPANY
Page
Parties 1
Recitals 1
Section 1 Granting clauses 3
Part I Electric Distributing Systems 4
Part II Steam and Hot Water
Distributing Systems 4
Part III Indeterminate Permits and
Franchises 5
Part IV Other Property 5
General and after-acquired title 6
Section 2 Designation of Thirty-Ninth series of
bonds and kind and denominations thereof 6
Designation of Company or American
National Bank and Trust Company of
Chicago as paying agent 7
Purpose of bonds 7
Redemption of bonds 8
Exchange of bonds 12
Transfer of bonds 13
Series limited to $40,000,000 13
Section 3 Form of fully registered bond 13
Form of Trustee's certificate on bonds 16
Section 4 Temporary bonds 19
Section 5 Payment of principal and interest;
credits 19
Section 6 Annual Payments for Maintenance and
Improvement Fund 20
Section 7 Compliance with Section 47 of Original
Mortgage with respect to dividend
restrictions 20
Section 8 Acceptance of trusts by Trustee and
conditions of acceptance 20
*Table of Contents is not part of the Forty-First
Supplemental Indenture and should not be considered such.
It is included herein only for purposes of convenient reference.
Page
Section 9 Successors and assigns 20
Section 10 Limitation of rights hereunder 21
Section 11 Compliance with terms, provisions and
conditions of Mortgage 21
Section 12 Execution in counterparts 21
Testimonium 22
Signatures and Seals 22
Acknowledgements 23
THIS FORTY-FIRST SUPPLEMENTAL INDENTURE, dated as of January 15,
1995, between Indianapolis Power & Light Company, a corporation of the
State of Indiana, hereinafter sometimes called the ''Company,'' party
of the first part, and American National Bank and Trust Company of
Chicago, a national banking association, as Trustee, hereinafter
sometimes called the ''Trustee,'' party of the second part;
Whereas, the Company by a Mortgage and Deed of Trust (hereinafter
sometimes called the ''Original Mortgage'' when referred to as existing
prior to any supplement thereto or modification thereof, and the
''Mortgage'' when referred to as now or heretofore supplemented and
modified) dated as of May 1, 1940, made to said American National Bank
and Trust Company of Chicago, as Trustee, to secure the payment of the
bonds issued from time to time under the Mortgage for the purposes of
and subject to the limitations specified in the Mortgage, and to secure
the performance of the covenants therein contained, conveyed to the
Trustee thereunder upon certain trusts, terms and conditions, and with
and subject to certain provisos and covenants therein contained, all
and singular the property, rights and franchises which the Company then
owned or should thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any indenture
supplemental thereto, to which Mortgage reference is hereby made for
greater certainty; and
Whereas, the Original Mortgage has been supplemented and modified by
supplemental indentures dated as of May 1, 1942, as of February 1,
1948, as of April 1, 1949, as of October 1, 1949, as of February 1,
1951, as of March 1, 1953, as of June 1, 1956, as of March 1, 1958, as
of October 1, 1960, as of August 1, 1964, as of April 1, 1966, as of
May 1, 1967, as of May 1, 1968, as of October 1, 1970, as of March 1,
1972, as of March 15, 1973, as of February 15, 1974, as of August 15,
1974, as of September 15, 1975, as of June 1, 1976, as of July 1, 1976,
as of August 1, 1977, as of September 1, 1978, as of August 1, 1981, as
of November 1, 1983, as of November 1, 1984, as of December 1, 1984, as
of September 1, 1985, as of October 1, 1986, as of June 1, 1989, as of
August 1, 1989, as of October 15, 1991, as of August 1, 1992, as of
April 1, 1993, as of October 1, 1993 and as of February 1, 1994.
Whereas, Section 8 of the Original Mortgage provides, among other
things, that the form of each series of bonds (other than the initial
issue of bonds) issued thereunder shall be established by an indenture
supplemental thereto authorized by resolution of the Board of Directors
of the Company, and that the form of each series, as established by the
Board of Directors, shall specify the descriptive title of the bonds
and various other terms thereof, and may also contain such other
provisions as the Board of Directors may, in its discretion, cause to
be inserted therein expressing or referring to the terms and conditions
upon which such bonds are to be issued and secured under the Original
Mortgage or any indenture supplemental thereto or in modification
thereof; and
Whereas, the Company has entered into a Loan Agreement, dated as of
January 15, 1995 (hereinafter called the Loan Agreement'') with the
City of Petersburg, Indiana (the ''City''), in order to obtain funds
for the refunding of the aggregate principal amount of Forty Million
Dollars ($40,000,000) of the City's Pollution Control Revenue Bonds,
Series 1984 (Indianapolis Power & Light Company Project) issued by the
City pursuant to related loan agreements to pay a portion of the cost
of acquisition, construction, installation and equipping by the Company
of certain pollution control facilities (the ''Facilities''), and
pursuant to the Loan Agreement the Company has agreed to issue a series
of its bonds under the Mortgage and this Forty-First Supplemental
Indenture in order to evidence and secure its indebtedness under the
Loan Agreement; and
Whereas, the Company now desires to provide for the establishment,
execution, authentication and delivery under the Mortgage of bonds of a
series to be known as its ''First Mortgage Bonds, 6-5/8% Series, due
2024'' (the bonds of said series being hereinafter sometimes referred
to as the ''2024 PC Bond''), limited to the aggregate principal amount
of Forty Million Dollars ($40,000,000); and
Whereas, all things necessary to make the 2024 PC Bond hereinafter
described, when duly executed by the Company and authenticated and
delivered by the Trustee, a valid, binding and legal obligation of the
Company, and to make this Forty-First Supplemental Indenture a valid
and binding agreement supplemental to the Original Mortgage, have been
done and performed; and
Whereas, the execution and delivery by the Company of this
Forty-First Supplemental Indenture, and the terms of the 2024 PC Bond,
have been duly authorized by the Board of Directors of the Company by
appropriate resolutions of said Board; and
Whereas, it is provided in and by the Original Mortgage that the
Company will execute and deliver such further instruments and do such
further acts as may be necessary or proper to carry out more
effectually the purposes of the Mortgage, and to make subject to the
lien thereof any property thereafter acquired and intended to be
subject to the lien thereof; and
Whereas, the Company has, since the date of execution and delivery
of the Original Mortgage, purchased and acquired property and desires
by this Forty-First Supplemental Indenture specifically to convey to
the Trustee such property for the better protection and security of the
bonds issued and to be issued under the Original Mortgage, or any
indenture supplemental thereto;
Now, Therefore, This Indenture Witnesseth that, in consideration of
the premises and of the acceptance or purchase of the 2024 PC Bond by
the registered owners thereof, and of the sum of one dollar, lawful
money of the United States of America, to the Company duly paid by the
Trustee at or before the execution and delivery of this Forty-First
Supplemental Indenture, the receipt whereof is hereby acknowledged, the
Company and the Trustee, respectively, have entered into, executed and
delivered this Forty-First Supplemental Indenture, for the uses and
purposes hereinafter expressed, that is to say:
Section 1. The Company has granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over and
confirmed, and by these presents does grant, bargain, sell, release,
convey, assign, transfer, mortgage, pledge, set over and confirm
(subject, however, to permitted encumbrances as defined in the Original
Mortgage), unto said American National Bank and Trust Company of
Chicago, as Trustee, as herein provided, and its successors in the
trusts declared in the Original Mortgage and herein, all of the
property, real, personal and mixed, tangible and intangible, of every
kind, character and description which the Company has acquired since
the execution and delivery of the Original Mortgage and now owns
(except property, rights and assets of a character similar to that
excluded from the lien and operation of the Mortgage by the Granting
Clauses of the Original Mortgage, which property, rights and assets are
excluded from the lien and operation of the Mortgage only to the extent
provided therein), including, but without otherwise limiting the
generality of the foregoing, the following described property situated
within the State of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired by it
after May 1, 1940, the date of the Original Mortgage, and located in
the Counties of Bartholomew, Boone, Daviess, Greene, Hamilton, Hancock,
Hendricks, Johnson, Knox, Madison, Marion, Monroe, Morgan, Owen, Pike,
Putnam, Shelby and Sullivan, State of Indiana; and any additions to or
extensions of any such systems, together with the buildings, erections,
structures, transmission lines, power stations, sub-stations, engines,
boilers, condensers, pumps, turbines, machinery, tools, conduits,
manholes, insulators, dynamos, motors, lamps, cables, wires, poles,
towers, cross-arms, piers, abutments, switchboard equipment, meters,
appliances, instruments, apparatus, appurtenances, maps, records,
ledgers, contracts, facilities and other property or equipment used or
provided for use in connection with the construction, maintenance,
repair and operation thereof; together also with all of the rights,
privileges, rights-of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits and easements of the Company in respect
of the construction, maintenance, repair and operation of said systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired by the
Company after May 1, 1940, the date of the Original Mortgage, and
located in the City of Indianapolis, Marion County, Indiana, and any
additions to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters, engines, tanks,
pipe lines, mains, connections, service pipes, meters, tools,
instruments, appliances, apparatus, facilities, machinery and other
property and equipment used or provided for use in the construction,
maintenance, repair and operation thereof; and together also with all
of the rights, privileges, rights-of-way, franchises, licenses, grants,
liberties, immunities, ordinances, permits and easements of the Company
in respect of the construction, maintenance, repair and operation of
said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances, licenses, and
other authorizations by or from any state, county, municipality, or
other governmental authority, acquired by the Company after May 1,
1940, the date of the Original Mortgage, including particularly, but
not limited to, any indeterminate permits under the Public Service
Commission Act of the State of Indiana, and all Acts amendatory thereof
and supplemental thereto, and all right, title and interest therein now
owned by the Company, and all renewals, extensions and modifications of
said indeterminate permits, franchises, ordinances, licenses, and other
authorizations, and of the indeterminate permits, franchises,
ordinances, licenses, and other authorizations referred to in Part VII
of the Granting Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed (except any in
the Mortgage expressly excepted), now owned by the Company and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same the scope and intent of the
foregoing or of any general description contained in the Mortgage) all
lands, flowage rights, water rights, flumes, raceways, dams,
rights-of-way and roads; all plants for the generation of electricity
by water, steam and/or other power, power houses, telephone systems,
water systems, steam heat and power plants, hot water plants,
sub-stations, transmission lines, distribution systems, bridges,
culverts and tracts; all offices, buildings and structures and the
equipment thereof; all machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors; all appliances
whether electrical, gas or mechanical, conduits, cables and lines; all
pipes whether for water, steam heat and power, or other purposes; all
mains and pipes, service pipes, fittings, valves and connections,
poles, wires, tools, implements, apparatus, furniture and chattels; all
municipal franchises, indeterminate permits, and other permits; all
lines for the transportation, transmission and/or distribution of
electric current, steam heat and power or water for any purpose,
including towers, poles, wires, cables, pipes, conduits and all
apparatus for use in connection therewith; all real estate, lands,
leases, leaseholds; all contracts, whether heat, light, power, water or
street lighting contracts; all easements, servitudes, licenses,
permits, rights, powers, franchises, privileges, rights-of-way and
other rights in or relating to real estate or the occupancy of the same
and (except as hereinafter or in the Mortgage expressly excepted) all
the right, title and interest of the Company in and to all other
property of any kind or nature appertaining to and/or used and/or
occupied and/or enjoyed in connection with any property hereinbefore
described or referred to;
Together with all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid
property or any part thereof, with the reversion and reversions,
remainder and remainders and (subject to the provisions of Section 64
of the Original Mortgage), the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the estate,
right, title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to
the aforesaid property, indeterminate permits, franchises, ordinances,
licenses and other authorizations and every part and parcel thereof.
Section 2. There shall be and is hereby established a series of
bonds, limited in aggregate principal amount to Forty Million Dollars
($40,000,000) to be issued under and secured by the Mortgage, to be
designated '' 6-5/8% Series, due 2024'', each of which shall also bear
the descriptive title ''First Mortgage Bonds''; said bonds shall mature
on December 1, 2024, and shall be issued only as fully registered bonds
without coupons in the denomination of five thousand dollars and any
larger denomination which is a whole multiple of five thousand dollars;
they shall bear interest from the beginning of the current interest
period during which each bond is dated, at the rate per annum
designated in the title thereof, payable semi-annually, on June 1 and
December 1 of each year (except that the first interest payment thereon
shall be made June 1, 1995 for the period from January 15, 1995 through
May 31, 1995); and the principal of, premium, if any, and interest on
said bond shall be payable in lawful money of the United States of
America at the office of the Company in the City of Indianapolis,
Indiana, or, if no such office is maintained, at American National Bank
and Trust Company of Chicago, which is hereby designated and appointed
the office and agency of the Company in the City of Chicago, Illinois,
for the payment of the principal of, premium, if any, and interest on
the 2024 PC Bond, if necessary, and for the registration, transfer and
exchange of such bond as hereinafter provided; all reference herein to
the office or agency of the Company in the City of Chicago, Illinois,
for the payment of the principal of, premium, if any, and interest on
the 2024 PC Bond, or the registration, transfer or exchange thereof,
being to American National Bank and Trust Company of Chicago. In event
of the resignation or inability to act of American National Bank and
Trust Company of Chicago, then a successor agent for all such purposes
in the City of Chicago, Illinois, shall be appointed by the Board of
Directors of the Company.
The 2024 PC Bond shall be dated as of the date of authentication
thereof, except as otherwise provided in Section 10 of the Original
Mortgage.
The 2024 PC Bond will be issued to evidence and secure a loan to the
Company by the City pursuant to the Loan Agreement of certain funds to
be acquired by the City through the issuance of City of Petersburg,
Indiana, Pollution Control Refunding Revenue Bonds, Series 1995A
(Indianapolis Power & Light Company Project) (the ''Series 1995A
Bonds''), authenticated and delivered under and pursuant to an
Indenture of Trust dated as of January 15, 1995 (hereinafter called the
''City Indenture''), by and between the City and Bank One Indianapolis,
NA, as Trustee (the ''City Trustee''). Pursuant to the City's pledge
and assignment of the Loan Agreement, as set forth in the City
Indenture, the 2024 PC Bond shall be issued to the City and assigned to
the City Trustee. All of the proceeds of the Series 1995A Bonds will be
used for the refunding of the aggregate principal amount of Forty
Million Dollars ($40,000,000) of the City's Pollution Control Revenue
Bonds, Series 1984 (Indianapolis Power & Light Company Project) issued
by the City pursuant to applicable loan agreements.
Upon the notice and in the manner and with the effect provided in
this Section 2, the 2024 PC Bond shall be redeemable prior to the
maturity thereof under any one or more of the following circumstances:
(a) In whole, at the option of the Company, if the Facilities or
Units 3 or 4 of the Petersburg Generating Station serviced by the
Facilities shall have been damaged or destroyed (i) to such extent
that they cannot be reasonably expected, in the opinion of the
Company, to be restored within a period of six (6) months to the
condition thereof immediately preceding such damage or destruction,
or (ii) to such extent that the Company, in its reasonable opinion,
is thereby prevented from carrying on its normal operations for a
period of six (6) months or more, or (iii) to such extent that the
restoration thereof would not be, taking into consideration the net
proceeds of any insurance payable as a result of such damage or
destruction, economic in the reasonable opinion of the Company.
(b) In whole, at the option of the Company, if title to, or the
temporary use of, all or substantially all of the Facilities or
Units 3 or 4 of the Petersburg Generating Station serviced by the
Facilities, shall have been taken, under the exercise of the power
of eminent domain, or should any governmental body or agency
exercise any right which it may have to purchase or designate a
purchaser of the same, or should such property be sold to any
governmental body or agency so that the result of such taking or
takings is that (i) the Company, in its reasonable opinion, is
thereby prevented from carrying on its normal operations of either
the Facilities or such Units 3 or 4 for a period of six (6) months
or more, (ii) the restoration required as a result of the taking
cannot be reasonably expected, in the opinion of the Company, to be
completed in a period of six (6) months, or (iii) the restoration
thereof, taking into consideration the net proceeds from such
eminent domain award, would not be economic in the reasonable
opinion of the Company.
(c) In whole, at the option of the Company, if, as a result of
any changes in the Constitution or law of the State of Indiana or
the Constitution or law of the United States of America or of
legislative or administrative action (whether state or federal) or
by final decree, judgment or order of any court or administrative
body (whether state or federal) entered after the contest thereof by
the Company in good faith or the decision of the Company not to
contest the same, the Loan Agreement shall, in the reasonable
opinion of counsel for the Company, have become void or unenforceable or
impossible of performance in accordance with the intent and purpose of the
parties as expressed in the Loan Agreement; or unreasonable burdens or
excessive liabilities shall, in the reasonable opinion of the Company, have
been imposed upon the City or the Company, with respect to the Facilities or
operation thereof, including without limitation federal, state or other ad
valorem, property, income or other taxes not being imposed on the
date of the Loan Agreement other than ad valorem taxes presently
levied upon privately owned property used for the same general
purpose as the Facilities.
(d) In whole, at the option of the Company, if changes in the
economic availability of raw materials, operating supplies or
facilities necessary for the operation of the Facilities or the
operation of Units 3 or 4 of the Petersburg Generating Station serviced by
the Facilities shall have occurred or technological or other changes
shall have occurred which render the Facilities or said Units 3 or 4
uneconomic for use in the reasonable opinion of the Company.
(e) In part, at the option of the Company, to the extent of net
proceeds received from any condemnation award, taking or sale as
stated herein, if title to, or the temporary use of any portion of
the Facilities shall have been taken under the exercise of the power
of eminent domain, or should any governmental body or agency
exercise any right it may have to purchase or designate a purchaser
of the same, or should such property be sold to any governmental
body or agency; provided the Company shall furnish to the City and
the City Trustee a certificate of an Independent Engineer (as
defined in the Loan Agreement) selected by the Company stating (i)
that the property forming the part of the Facilities that was taken
by such condemnation, taking or sale is not essential to the
character or significance of the Facilities, or (ii) that the
Facilities have been restored to a condition substantially
equivalent to their condition prior to the taking by such
condemnation, taking or sale proceedings, or (iii) that improvements
have been acquired which are suitable for the operation of the Facilities.
(f) In whole, at any time on or after December 1, 2004, or in
part on any interest payment date on or after December 1, 2004, at
the option of the Company at a price equal to the principal amount
of the 2024 PC Bond so to be redeemed and accrued interest to the
date of redemption, together with a premium equal to a percentage of
the principal amount thereof set forth under the heading ''Redemption
Premium'' in the form of the 2024 PC Bond hereinafter recited, so long as
the Company is not in default under the Loan Agreement or the 2024 PC Bond.
(g) In the event all or substantially all of the mortgaged and
pledged property under the Mortgage, or all or substantially all
such property used in the business of generating, manufacturing,
transporting, transmitting, distributing or supplying electricity,
should be taken by exercise of the power of eminent domain, or
should any governmental body or agency exercise any right which it
may have to purchase or designate a purchaser of the same, or should
such property be sold to any governmental body or agency, the
Company shall be obligated to redeem the 2024 PC Bond outstanding as
promptly as possible in accordance with paragraph B of Section 69 of
the Original Mortgage.
(h) In the event that the Company is notified by the City Trustee
that (i) an event of default under the City Indenture has occurred
and is continuing, and (ii) the City Trustee has declared the
principal of all the Series 1995A Bonds then outstanding immediately
due and payable pursuant to the City Indenture, the Company shall
call for redemption, on a redemption date selected by it not later
than thirty (30) days following the date on which such notice is
mailed, the 2024 PC Bond outstanding, and shall on such redemption
date redeem the same; provided, however, that such requirement of
redemption shall be deemed waived, if prior to the date fixed for
such redemption of the 2024 PC Bond (x) such event of default is
waived or cured as set forth in the City Indenture, or (y) there
shall have occurred any completed default (as defined in the
Mortgage) which affects any bond of any series outstanding under the
Mortgage and which completed default has not been cured and made
good prior to such redemption date, it being the intent of this
proviso that, in lieu of such right to redemption, the holder of the
2024 PC Bond shall be entitled only to such rights as are available
to the holders of bonds of any other series outstanding under the
Mortgage in the event of such completed default; and in case of any
subsequent occurrence or continuance of the events described in (i)
and (ii) of this Section 2(h), the Company shall have the same
obligation (subject to the same proviso) to redeem the 2024 PC Bond.
(i) In the event the City Trustee notifies the Company and the
City that the interest payable on the Series 1995A Bonds held by
persons other than a ''substantial user'' or a ''related person'' as
those terms are used in Section 147(a)(2) of the Internal Revenue
Code of 1986, as amended, has been determined by a court of
competent jurisdiction or a formal ruling of the Internal Revenue
Service to be subject to federal income taxation by reason of a
breach by the Company of any covenant, agreement or representation
in the Loan Agreement, the Company shall call the 2024 PC Bond then
outstanding to be redeemed on the next succeeding interest payment
date within one hundred eighty (180) days after the date of such
notice; provided, however, that such requirement of redemption,
whether in whole or in part shall be deemed waived if, prior to the
date fixed for redemption of the 2024 PC Bond pursuant to this
Section 2(i), there shall have occurred any completed default (as
defined in the Mortgage) which affects any bond of any series
outstanding under the Mortgage and which completed default has not
been cured and made good prior to such redemption date, it being the
intent of this proviso that, in lieu of such right to redemption,
the holder of the 2024 PC Bond shall be entitled only to such rights
as are available to the holders of bonds of any other series
outstanding under the Mortgage in the event of such completed
default; but when any such completed default shall have been cured
and made good, if interest on the Series 1995A Bonds shall still be
taxable as described above, the Company shall have the same
obligation (subject to the same proviso) to redeem the 2024 PC Bond
on the next succeeding interest payment date within one hundred
eighty (180) days after the curing and making good of such completed
default; provided further, that the Company may call for redemption
such portion of the 2024 PC Bond, which in the written opinion of an
attorney or firm of attorneys of nationally recognized standing on
the subject of municipal bonds, would allow the City Trustee to
redeem the Series 1995A Bonds in part, which redemption would have
the result that the interest payable on the Series 1995A Bonds
remaining outstanding after such redemption in part would not be
subject to federal income taxation in the hands of persons other
than a ''substantial user'' or a ''related person'' as those terms
are used in Section 147(a)(2) of the Internal Revenue Code of 1986,
as amended.
In case of redemption of 2024 PC Bond in whole for the purpose of
prepayment under the Loan Agreement pursuant to subsections (a), (b),
(c), (d), (f), (g), (h) or (i) above, the amounts payable upon
redemption of 2024 PC Bond shall be a sum sufficient, together with
other funds deposited with the City Trustee and available for such
purpose, to pay the principal of (and premium, in the case of
redemption pursuant to (f) above), and interest on the 2024 PC Bond
then outstanding and to pay all reasonable and necessary fees and
expenses of the City Trustee accrued and to accrue through final
payment of the 2024 PC Bond.
In case of redemption in part pursuant to (e), (f) or (i) above,
the amount payable by the Company under this Forty-First Supplemental
Indenture, the Loan Agreement and the 2024 PC Bond shall be a sum
sufficient, together with other funds deposited with the Trustee and
available for such purpose, to pay the principal of (and premium in the
case of prepayment pursuant to (f) above) and interest on the 2024 PC
Bond so to be redeemed, which sum together with other funds deposited
with the City Trustee and available for such purpose shall be
sufficient to pay the principal of, premium, if any, and interest on
the Series 1995A Bonds and to pay all reasonable and necessary fees and
expenses of the City Trustee accrued and to accrue through such partial
prepayment.
The 2024 PC Bond and the Series 1995A Bonds shall be redeemable at
any time within one hundred eighty (180) days following the event or
events described as giving rise to an option of the Company to redeem
them in subsections (a), (b), (c), (d) or (e) above.
To exercise any of the options granted to redeem the 2024 PC Bond
in whole or in part or to comply with any obligations to redeem the 2024
PC Bond in whole or in part imposed in this Section 2, the Company
shall give written notice of the date of redemption to the City
Trustee, which date shall be not less than thirty (30) days nor more
than ninety (90) days from the date the notice is mailed. No further
notice, by publication or otherwise, shall be required for redemption
of the 2024 PC Bond, and the requirements of Section 59 of the Mortgage
for notice by newspaper publication shall not apply to the 2024 PC Bond.
At the option of the holder, the 2024 PC Bond, upon surrender
thereof at the office or agency of the Company in Chicago, Illinois,
together with a written instrument of transfer in form approved by the
Company duly executed by the holder or by his duly authorized attorney,
shall be exchangeable for a like aggregate principal amount of fully
registered bonds of the same series of other authorized denominations.
The 2024 PC Bond will be nontransferable except to the City Trustee
and successors thereto, if any, and to the Company. To the extent that
it is transferable, it is transferable by the registered holder
thereof, in person or by attorney duly authorized in writing, on the
books of the Company at the office or agency of the Company in the City
of Chicago, Illinois, upon surrender thereof for cancellation at said
office and upon presentation of a written instrument of transfer duly
executed. Thereupon, the Company shall issue in the name of the
transferee, and the Trustee shall authenticate and deliver, a new
registered 2024 PC Bond or Bonds, in authorized denominations, of equal
aggregate principal amount. Any such transfer shall be subject to the
terms and conditions specified in the Mortgage and in this Forty-First
Supplemental Indenture.
The Company shall not be required to transfer or exchange the 2024
PC Bond for a period of ten (10) days next preceding any interest
payment date of said bond.
Except as set forth herein, no charge shall be made upon any
transfer or exchange of any of the 2024 PC Bond other than for any tax
or taxes or other governmental charge required to be paid by the Company.
The 2024 PC Bond shall be limited to an aggregate principal amount
of Forty Million Dollars ($40,000,000) and shall be issued under the
provisions of Article VII of the Original Mortgage.
Section 3. The 2024 PC Bond, and the Trustee's Certificate to be
endorsed thereon, shall be in the following forms, respectively:
[form of face of 2024 pc bond]
This First Mortgage Bond, 6-5/8% Series, due 2024 (hereinafter
called the ''2024 PC Bond'') is not transferable except to a successor
trustee under the Indenture of Trust dated as of January 15, 1995,
between the City of Petersburg, Indiana and Bank One Indianapolis, N.A.,
Indiana, as the Trustee, or to Indianapolis Power & Light Company.
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 6-5/8% Series, Due 2024
Due December 1, 2024
No. 1 $40,000,000
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the State of
Indiana (hereinafter called the ''Company''), for value received,
hereby promises to pay to BankOne Indianapolis, N.A., Indiana, as the
Trustee (hereinafter called the ''City Trustee'') under the Indenture
of Trust between the City of Petersburg, Indiana (the ''City'') and the
City Trustee, dated as of January 15, 1995 (the ''City Indenture'') or
registered assigns, on December 1, 2024, at the office of the Company,
in the City of Indianapolis, State of Indiana, or if no such office is
maintained at the time by the Company, then at the office or agency of
the Company for such purpose in the City of Chicago, State of Illinois,
Forty Million Dollars ($40,000,000) in lawful money of the United
States of America, and to pay to the registered owner hereof interest
thereon from the first day of June or the first day of December next
preceding the date of this 2024 PC Bond (except that the first interest
payment hereunder shall be made June 1, 1995 for the period from
January 15, 1995 through May 31, 1995), at the rate of six and five-eighths
percent (6-5/8%) per annum in like lawful money at said office or agency, on
June 1 and December 1 in each year, until the Company's obligation with
respect to the payment of such principal shall have been discharged.
The interest payable hereunder on June 1 or December 1 will be paid to
the registered owner of this 2024 PC Bond at or before the close of
business on such dates, or if such date shall be a Saturday, Sunday,
holiday or a day on which banking institutions in the City of
Indianapolis or the city of any paying agents are authorized by law to
close, on or before the close of business on the next succeeding
business day on which such banking institutions are open for business.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS 2024 PC BOND SET
FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL, FOR ALL
PURPOSES, HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
No recourse shall be had for the payment of the principal of or
interest on this 2024 PC Bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder, officer
or director of the Company or of any predecessor or successor
corporation, as such, either directly or through the Company or any
predecessor or successor corporation, under any rule of law, statute,
or constitution or by the enforcement of any assessment or otherwise,
all such liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and released by the terms
of the Mortgage, as herein defined.
This 2024 PC Bond shall not become obligatory until American
National Bank and Trust Company of Chicago, the Trustee under the
Mortgage, as herein defined, or its successor thereunder, shall have
signed the form of certificate endorsed hereon.
In Witness Whereof, Indianapolis Power & Light Company has caused
this 2024 PC Bond to be signed in its name by its President or its
Treasurer, by his signature or a facsimile thereof, and its corporate
seal to be affixed hereon, attested by its Secretary or one of its
Assistant Secretaries, by his signature or a facsimile thereof.
Indianapolis Power & Light Company
Dated By
Treasurer
Attest:
By
Secretary
[form of trustee's certificate on 2024 pc bond]
Trustee's Certificate
This 2024 PC Bond is one of the bonds, of the series herein
designated, provided for in the within-mentioned Mortgage and
Forty-First Supplemental Indenture thereto.
American National Bank and Trust Company of
Chicago Trustee
By
Authorized Signature
[form of reverse side of 2024 pc bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 6-5/8% Series, due 2024
Due January 1, 2024
This 2024 PC Bond is one of an issue of bonds of the Company,
issuable in series, and is one of a series known as its First Mortgage
Bonds, 6-5/8% Series, due 2024 (herein called the ''2024 PC Bond'')
limited in aggregate principal amount to Forty Million Dollars
($40,000,000) and established by a Forty-First Supplemental Indenture
dated as of January 15, 1995, all bonds of all series issued and to be
issued under and equally secured (except insofar as any sinking or
other fund, established in accordance with the provisions of the
Mortgage hereinafter mentioned, may afford additional security for the
bonds of any particular series) by a Mortgage and Deed of Trust, dated
as of May 1, 1940, executed by the Company to American National Bank
and Trust Company of Chicago, as the Trustee (which Mortgage and Deed
of Trust as supplemented and modified by all supplemental indentures
thereto is hereinafter referred to as the ''Mortgage''), to which
Mortgage reference is made for a description of the property mortgaged
and pledged, the nature and extent of the security, the rights of the
bearers or registered owners of the bonds in respect of such security,
the duties and immunities of the Trustee and the terms and conditions
upon which the bonds are secured.
This 2024 PC Bond evidences and secures a loan made by the City to
the Company, pursuant to a Loan Agreement, dated as of January 15,
1995, between the City and the Company (the ''Loan Agreement''). In
order to obtain funds for such loan, the City, contemporaneously with
the issue of this 2024 PC Bond, will issue Forty Million Dollars
($40,000,000) principal amount of its Pollution Control Refunding
Revenue Bonds, Series 1995A (Indianapolis Power & Light Company
Project) (the ''City Bonds'') under and pursuant to the City Indenture.
The City Bonds are payable from payments made by the Company of
principal of, premium, if any, and interest on this 2024 PC Bond and
from moneys in the Bond Fund created under the City Indenture. The
obligation of the Company to pay the principal of, premium, if any, and
interest on this 2024 PC Bond shall be discharged to the extent that
any moneys in said Bond Fund are available for payments on the City
Bonds and are directed by the Company to be applied thereto, all as
provided in the Forty-First Supplemental Indenture.
This 2024 PC Bond is not subject to redemption prior to December 1,
2004, except as provided in Section 2 of the Forty-First Supplemental
Indenture, to which reference is made for full description of
redemption provisions.
<PAGE>
This 2024 PC Bond is subject to redemption in whole at any time on
or after December 1, 2004, or in part on any interest payment date on
or after December 1, 2004, at the option of the Company, upon at least
thirty (30) days prior notice, all as provided in the Forty-First
Supplemental Indenture, at a price equal to the principal amount of the
2024 PC Bond so to be redeemed and accrued interest to the date of
redemption, together with a premium equal to a percentage of the
principal amount thereof set forth below under the heading ''Redemption
Premium'':
If Redeemed During the Twelve Months
Ending With the Thirtieth Day
Redemption
of November of the Year Stated Premium
2005 2.0%
2006 1.0%
and without premium if redeemed after November 30, 2006.
With the consent of the Company and to the extent permitted by and
as provided in the Mortgage, the rights and obligations of the Company
and/or of the holders of the bonds and/or coupons and/or the terms and
provisions of the Mortgage and/or any instruments supplemental thereto
may be modified or altered by affirmative vote of the holders of at
least sixty-six and two-thirds per centum (662/3%) in principal amount
of the bonds affected by such modification or alteration then
outstanding under the Mortgage (excluding bonds disqualified from
voting by reason of the Company's interest therein as provided in the
Mortgage); provided that no such modification or alteration shall
permit the extension of the maturity of the principal of this 2024 PC
Bond or the reduction in the rate of interest hereon or any other
modification in the terms of payment of such principal or interest
without the consent of the holder hereof. The principal hereof may be
declared or may become due and payable prior to the stated date of
maturity hereof, on the conditions, in the manner and at the time set
forth in the Mortgage, upon the occurrence of a completed default as in
the Mortgage provided.
No reference herein to the Mortgage, and no provision of this 2024
PC Bond or of the Mortgage, shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay, subject to the
provisions of the Forty-First Supplemental Indenture, the principal of,
and premium, if any, and interest on this 2024 PC Bond at the place, at
the respective times and at the rate and the manner herein prescribed.
This 2024 PC Bond is issuable only in full registered form without
coupons in denominations of Five Thousand Dollars and any larger
denomination which is a whole multiple of Five Thousand Dollars.
This 2024 PC Bond will be nontransferable except to the City Trustee
and successors thereto, if any, and to the Company. To the extent that
it is transferable, it is transferable by the registered holder
thereof, in person or by attorney duly authorized in writing, on the
books of the Company at the office or agency of the Company in the City
of Chicago, Illinois, upon surrender thereof for cancellation at said
office and upon presentation of a written instrument of transfer duly
executed. Thereupon, the Company shall issue in the name of the
transferee, and the Trustee shall authenticate and deliver, a new
registered 2024 PC Bond or Bonds, in authorized denominations, of equal
aggregate principal amount. Any such transfer shall be subject to the
terms and conditions specified in the Mortgage and in the Forty-First
Supplemental Indenture.
[end of 2024 pc bond form]
Section 4. Until the 2024 PC Bond in definitive form is ready for
delivery, the Company may execute, and upon its request in writing the
Trustee shall authenticate and deliver, in lieu thereof, a fully
registered 2024 PC Bond in temporary form, as provided in Section 15 of
the Original Mortgage. Such bond may, in lieu of the statement of the
specific redemption prices required to be set forth in such bond in
definitive form, include a reference to this Forty-First Supplemental
Indenture for a statement of such redemption prices.
Section 5. The Company covenants and agrees that it will duly and
punctually pay to the holder of the 2024 PC Bond the principal thereof,
premium, if any, and interest on said bond at the dates and place and
in the manner mentioned therein; provided, however, that:
(a) The obligation of the Company to pay the principal of, and
premium, if any, and interest on the 2024 PC Bond shall be
discharged to the extent that any moneys in the Series 1995A Bond
Account within the Bond Fund created under and pursuant to the City
Indenture are available for the payment of the principal of, or
premium, if any, or interest on the Series 1995A Bonds and are
directed by the Company to be applied to the payment thereof in the
manner provided in the City Indenture on or prior to the dates on
which the Company is required to pay the principal of, or premium,
if any, or interest on the 2024 PC Bond.
(b) Except as otherwise provided in this Section 5, the principal
amount of any Series 1995A Bond acquired by the Company and
delivered to the City Trustee, or acquired by the City Trustee and
cancelled, shall be credited against the obligation of the Company
to pay the principal of the 2024 PC Bond.
As the principal of, premium, if any, and interest on the 2024 PC Bond
is paid or deemed paid in full, and upon its receipt by the Company,
such bond shall be delivered to the Trustee for cancellation. The
Company shall promptly inform the Trustee of all payments made and
credits availed of with respect to its obligations on the 2024 PC Bond.
The Trustee shall not be required to recognize any payment made or
credit availed of with respect to any 2024 PC Bond unless it has
received (a) the bond for cancellation by it, or (b) a certificate
signed by a duly authorized officer of the City Trustee specifying the
amount of such payment or credit and the principal amount of the 2024
PC Bond with respect to which the payment or credit was applied. In the
absence of receipt by the Trustee of any 2024 PC Bond, any such
certificate shall be controlling and conclusive.
Section 6. The covenant of the Company to make annual payments to
the Trustee for a Maintenance and Improvement Fund as contained in
Section 41 of the Original Mortgage and in the first twenty-four
Supplemental Indentures to the Original Mortgage creating the several
series of First Mortgage Bonds presently outstanding under such
Supplemental Indentures shall not apply to nor be for the benefit of
the 2024 PC Bond, and the Company reserves the right, without any
consent of, or other action by, the holder of the 2024 PC Bond, to
amend, modify or delete the provisions of the Mortgage relating to such
Maintenance and Improvement Fund and by acceptance of the 2024 PC Bond
the holder thereof waives any right or privilege so to consent or take
any other action with respect thereto.
Section 7. The Company covenants that, so long as the 2024 PC Bond
shall remain outstanding, it will comply with all of the provisions of
Section 47 of the Original Mortgage, including the provisions with
respect to limitations on dividends and distributions and the purchase
and redemption of stock.
Section 8. The Trustee hereby accepts the trusts herein declared,
provided and created and agrees to perform the same upon the terms and
conditions herein and in the Mortgage set forth and upon the following
terms and conditions:
The recitals contained herein and in the bonds shall be taken as the
statements of the Company and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representations as to
the validity or adequacy of the security afforded hereby, or as to the
validity of this Forty-First Supplemental Indenture or of the 2024 PC
Bond issued hereunder.
Section 9. Whenever in this Forty-First Supplemental Indenture
either of the parties hereto is named or referred to, this shall,
subject to the provisions of Article XVII of the Original Mortgage, be
deemed to include the successors or assigns of such party, and all the
covenants and agreements in this Forty-First Supplemental Indenture
contained by or on behalf of the Company, or by or on behalf of the
Trustee, shall, subject as aforesaid, bind and inure to the benefit of
the respective successors and assigns of such parties, whether so
expressed or not.
Section 10. Nothing in this Forty-First Supplemental Indenture
expressed or implied, is intended or shall be construed to confer upon,
or to give to, any person, co-partnership or corporation, other than
the parties hereto and the holders of the bonds and coupons outstanding
under the Mortgage, any right, remedy, or claim under or by reason of
this Forty-First Supplemental Indenture or any covenant, condition or
stipulation hereof; and all the covenants, conditions, stipulations,
promises and agreements in this Forty-First Supplemental Indenture
contained by or on behalf of the Company shall be for the sole and
exclusive benefit of the parties hereto and of the holders of the bonds
and of the coupons outstanding under the Mortgage.
Section 11. The Company covenants that all of the terms, provisions
and conditions of the Mortgage shall be applicable to the 2024 PC Bond
issued hereunder, except as herein otherwise provided and except
insofar as the same may be inconsistent with the provisions of this
Forty-First Supplemental Indenture.
Section 12. This Forty-First Supplemental Indenture is dated as of
January 15, 1995, although executed and delivered on the date of the
acknowledgement hereof by the Trustee; and shall be simultaneously
executed and delivered in several counterparts, and all such
counterparts executed and delivered, each as an original, shall
constitute but one and the same instrument.
<PAGE>
In Witness Whereof, Indianapolis Power & Light Company, party of the
first part, has caused its corporate name to be hereunto affixed and
this instrument to be signed and acknowledged by its President or a
Vice-President, and its corporate seal to be hereto affixed and
attested by its Secretary or an Assistant Secretary, for and in its
behalf, and American National Bank And Trust Company Of Chicago, party
of the second part, as Trustee, has caused its corporate name to be
hereunto affixed and this instrument to be signed and acknowledged by
one of its Vice-Presidents, and its corporate seal to be hereto affixed
and attested by one of its Assistant Secretaries, all as of the day,
month and year first above written.
Indianapolis Power & Light Company,
By /s/ Bryan G. Tabler
Bryan G. Tabler,
Senior Vice-President
Attest:
/s/ Clark L. Snyder
Clark L. Snyder,
Assistant Secretary
American National Bank And Trust Company of
Chicago
By /s/ Ronald B. Bremen
Ronald B. Bremen,
Vice-President
Attest:
(Seal)
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary
<PAGE>
State of Indiana
County of Marion
On this 2nd day of February, in the year 1995, before me, a Notary
Public in and for the County and State aforesaid, personally came Bryan
G. Tabler, Senior Vice-President, and Clark L. Snyder, Assistant
Secretary, of Indianapolis Power & Light Company, one of the
corporations described in and which executed the foregoing instrument,
to me personally known and known to me personally to be such Senior
Vice-President and Assistant Secretary, respectively. Said Bryan G.
Tabler and Clark L. Snyder being by me severally duly sworn did depose
and say that the said Bryan G. Tabler resides in Marion County, Indiana
and the said Clark L. Snyder resides in Marion County, Indiana; that
said Bryan G. Tabler is Senior Vice-President and said Clark L. Snyder
is Assistant Secretary of said Indianapolis Power & Light Company; that
each of them knows the corporate seal of said corporation; that the
seal affixed to said instrument and bearing the name of said
corporation is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation; and that each of them
signed his name thereto by like order; and each of them acknowledged
the execution of said instrument on behalf of said corporation to be
his free and voluntary act and deed and the free and voluntary act and
deed of said corporation, for the uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and affixed my
official seal this 2nd day of February 1995.
/s/ Gloria K. Bryant
Gloria K. Bryant,
Notary Public
My Commission Expires:
June 11, 1995
My County of Residence is:
Marion
(Notarial Seal)
State of Illinois
County of Cook
<PAGE>
On this 1st day of February, in the year 1995, before me, a Notary
Public in and for the County and State aforesaid, personally came Ronald B.
Bremen, Vice-President, and Robert M. Selangowski, Assistant Secretary, of
American National Bank and Trust Company of Chicago, one of the corporations
described in and which executed the foregoing instrument, to me personally
known and known to me personally to be such Senior Vice-President and
Assistant Secretary, respectively. Said Ronald B. Bremen and Robert M.
Selangowski, being by me severally sworn did depose and say that the said
Ronald B. Bremen resides in Glencoe, Illinois, and that the said Robert M.
Selangowski resides in Lansing, Illinois; that said Ronald B. Bremen is
Vice-President and said Robert M. Selangowski is Assistant Secretary of
said American National Bank and Trust Company of Chicago; that each of them
knows the corporate seal of said corporation; that the seal affixed to said
instrument and bearing the name of said corporation is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; that each of them signed his name thereto by like authority;
and each of them acknowledged the execution of said instrument on behalf of
said corporation to be his free and voluntary act and deed and the free and
voluntary act and deed of said corporation, for the uses and purposes
therein set forth.
In Witness Whereof, I have hereunto set my hand and affixed my
official seal this 1st day of February, 1995.
/s/ Bernadette G. Janairo
Bernadette G. Janairo
Notary Public
My Commission Expires:
May 22, 1998
My County of Residence is:
Cook
(Notarial Seal)
This instrument was prepared by
Bryan G. Tabler
INDIANAPOLIS POWER & LIGHT COMPANY
TO
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
Trustee
Forty-Second Supplemental Indenture
Dated as of October 1, 1995
ESTABLISHING FIRST MORTGAGE BONDS,
5.21% Series, Due 2023
TABLE OF CONTENTS*
of
FORTY-SECOND SUPPLEMENTAL INDENTURE
of
INDIANAPOLIS POWER & LIGHT COMPANY
Page
Parties 1
Recitals 1
Section 1 Granting clauses 4
Part I Electric Distributing Systems 5
Part II Steam and Hot Water Distributing
Systems 5
Part III Indeterminate Permits and Franchises 6
Part IV Other Property 6
General and after-acquired title 6
Section 2 Designation of Fortieth series of bonds
and kind and denominations thereof 7
Designation of Company or American National
Bank and Trust Company of Chicago as
paying agent 8
Purpose of bonds 8
Redemption of bonds 8
Exchange of bonds 9
Transfer of bonds 9
Series limited to $40,000,000 9
Section 3 Form of fully registered bond 10
Form of Trustee's certificate on bonds 12
Section 4 Temporary bonds 14
Section 5 Payments made hereunder; discharge of
obligation; credits 14
Section 6 Annual Payments for Maintenance and
Improvement Fund 15
Section 7 Compliance with Section 47 of Original
Mortgage with respect to dividend
restrictions 15
Section 8 Acceptance of trusts by Trustee and
conditions of acceptance 15
*Table of Contents is not part of the Forty-Second
Supplemental Indenture and should not be considered
such. It is included herein only for purposes of
convenient reference.
Page
Section 9 Successors and assigns 16
Section 10 Limitation of rights hereunder 16
Section 11 Compliance with terms, provisions and
conditions of Mortgage 16
Section 12 Execution in counterparts 16
Testimonium 17
Signatures and Seals 17
Acknowledgements 18
THIS FORTY-SECOND SUPPLEMENTAL INDENTURE, dated as of October 1,
1995, between Indianapolis Power & Light Company, a corporation of the
State of Indiana, hereinafter sometimes called the ''Company,'' party
of the first part, and American National Bank and Trust Company of
Chicago, a national banking association, as Trustee, hereinafter
sometimes called the ''Trustee,'' party of the second part;
Whereas, the Company by a Mortgage and Deed of Trust (hereinafter
sometimes called the ''Original Mortgage'' when referred to as existing
prior to any supplement thereto or modification thereof, and the
''Mortgage'' when referred to as now or heretofore supplemented and
modified) dated as of May 1, 1940, made to said American National Bank
and Trust Company of Chicago, as Trustee, to secure the payment of the
bonds issued from time to time under the Mortgage for the purposes of
and subject to the limitations specified in the Mortgage, and to secure
the performance of the covenants therein contained, conveyed to the
Trustee thereunder upon certain trusts, terms and conditions, and with
and subject to certain provisos and covenants therein contained, all
and singular the property, rights and franchises which the Company then
owned or should thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any indenture
supplemental thereto, to which Mortgage reference is hereby made for
greater certainty; and
Whereas, the Original Mortgage has been supplemented and modified by
supplemental indentures dated as of May 1, 1942, as of February 1,
1948, as of April 1, 1949, as of October 1, 1949, as of February 1,
1951, as of March 1, 1953, as of June 1, 1956, as of March 1, 1958, as
of October 1, 1960, as of August 1, 1964, as of April 1, 1966, as of
May 1, 1967, as of May 1, 1968, as of October 1, 1970, as of March 1,
1972, as of March 15, 1973, as of February 15, 1974, as of August 15,
1974, as of September 15, 1975, as of June 1, 1976, as of July 1, 1976,
as of August 1, 1977, as of September 1, 1978, as of August 1, 1981, as
of November 1, 1983, as of November 1, 1984, as of December 1, 1984, as
of September 1, 1985, as of October 1, 1986, as of June 1, 1989, as of
August 1, 1989, as of October 15, 1991, as of August 1, 1992, as of
April 1, 1993, as of October 1, 1993, as of February 1, 1994 and as of
January 15, 1995.
Whereas, Section 8 of the Original Mortgage provides, among other
things, that the form of each series of bonds (other than the initial
issue of bonds) issued thereunder shall be established by an indenture
supplemental thereto authorized by resolution of the Board of Directors
of the Company, and that the form of each series, as established by the
Board of Directors, shall specify the descriptive title of the bonds
and various other terms thereof, and may also contain such other
provisions as the Board of Directors may, in its discretion, cause to
be inserted therein expressing or referring to the terms and conditions
upon which such bonds are to be issued and secured under the Original
Mortgage or any indenture supplemental thereto or in modification
thereof; and
Whereas, the Company has entered into a Loan Agreement, dated as of
October 1, 1995 (hereinafter called the ''Loan Agreement'') with the
City of Petersburg, Indiana (the ''City''), in order to obtain funds
for the refunding of the aggregate principal amount of Forty Million
Dollars ($40,000,000) of the City's Pollution Control Refunding Revenue
Bonds, Series 1985 (Indianapolis Power & Light Company Project) issued
by the City pursuant to related loan agreements to pay a portion of the
cost of acquisition, construction, installation and equipping by the
Company of certain pollution control facilities (the ''Facilities''); and
Whereas, the Company has secured a Municipal Bond Insurance Policy
issued by AMBAC Indemnity Corporation (''AMBAC'') to secure the timely
payment of principal and interest on the City of Petersburg Pollution
Control Refunding Revenue Bonds, Adjustable Rate Tender Securities
(ARTS)SM, Series 1995B (Indianapolis Power & Light Company Project),
due January 1, 2023 (the ''Series 1995B Bonds''); and
Whereas, the Company will enter into an Insurance Agreement dated as
of October 18, 1995 with AMBAC (the ''Insurance Agreement'') to
evidence the reimbursement obligations of the Company to AMBAC for the
payment by AMBAC of the principal of and interest on the Series 1995B
Bonds pursuant to the Municipal Bond Insurance Policy issued by AMBAC
(the ''Bond Obligations''); and
Whereas, the Company has entered into an Interest Rate Swap
Agreement, dated as of October 11, 1995 with AMBAC Financial Services
Limited Partnership (hereinafter ''AFSLP''), (the ''Swap Agreement'')
under which AFSLP will have an obligation to make payments to the
Company equal to the variable rate interest payments on the Series
1995B Bonds, subject to adjustment in accordance with the terms of the
Swap Agreement, and the Company will have an obligation to make
payments to AFSLP equal to the fixed rate interest payment on the
Company's 2023 PC Bond, as defined below, and such payments subject to
a netting of those obligations in accordance with the terms of the Swap
Agreement (to the extent amounts are owing by the Company after such
netting, the ''Swap Obligations''); and
Whereas, the Company has secured a Financial Guaranty Insurance
Policy pursuant to which AMBAC insures the payment obligations of the
Company pursuant to the Swap Agreement (the ''Swap Policy''); and
Whereas, the Insurance Agreement also evidences the reimbursement
obligations of the Company to AMBAC for any payments made pursuant to
the Swap Policy; and
Whereas, pursuant to the terms of the Swap Agreement and the
Insurance Agreement the Company has agreed to issue a series of its
bonds under the Mortgage and this Forty-Second Supplemental Indenture
in order to evidence and secure amounts owing under the terms of the
Swap Agreement and the Insurance Agreement; and
Whereas, the Company now desires to provide for the establishment,
execution, authentication and delivery under the Mortgage of bonds of a
series to be known as its ''First Mortgage Bonds, 5.21% Series, due
2023'' (the bonds of said series being hereinafter sometimes referred
to as the ''2023 PC Bond''), limited to the aggregate principal amount
of Forty Million Dollars ($40,000,000); and
Whereas, all things necessary to make the 2023 PC Bond hereinafter
described, when duly executed by the Company and authenticated and
delivered by the Trustee, a valid, binding and legal obligation of the
Company, and to make this Forty-Second Supplemental Indenture a valid
and binding agreement supplemental to the Original Mortgage, have been
done and performed; and
Whereas, the execution and delivery by the Company of this
Forty-Second Supplemental Indenture, and the terms of the 2023 PC Bond,
have been duly authorized by the Board of Directors of the Company by
appropriate resolutions of said Board; and
Whereas, it is provided in and by the Original Mortgage that the
Company will execute and deliver such further instruments and do such
further acts as may be necessary or proper to carry out more
effectually the purposes of the Mortgage, and to make subject to the
lien thereof any property thereafter acquired and intended to be
subject to the lien thereof; and
Whereas, the Company has, since the date of execution and delivery
of the Original Mortgage, purchased and acquired property and desires
by this Forty-Second Supplemental Indenture specifically to convey to
the Trustee such property for the better protection and security of the
bonds issued and to be issued under the Original Mortgage, or any
indenture supplemental thereto;
Now, Therefore, This Indenture Witnesseth that, in consideration of
the premises and of the acceptance or purchase of the 2023 PC Bond by
the registered owners thereof, and of the sum of one dollar, lawful
money of the United States of America, to the Company duly paid by the
Trustee at or before the execution and delivery of this Forty-Second
Supplemental Indenture, the receipt whereof is hereby acknowledged, the
Company and the Trustee, respectively, have entered into, executed and
delivered this Forty-Second Supplemental Indenture, for the uses and
purposes hereinafter expressed, that is to say:
Section 1. The Company has granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over and
confirmed, and by these presents does grant, bargain, sell, release,
convey, assign, transfer, mortgage, pledge, set over and confirm
(subject, however, to permitted encumbrances as defined in the Original
Mortgage), unto said American National Bank and Trust Company of
Chicago, as Trustee, as herein provided, and its successors in the
trusts declared in the Original Mortgage and herein, all of the
property, real, personal and mixed, tangible and intangible, of every
kind, character and description which the Company has acquired since
the execution and delivery of the Original Mortgage and now owns
(except property, rights and assets of a character similar to that
excluded from the lien and operation of the Mortgage by the Granting
Clauses of the Original Mortgage, which property, rights and assets are
excluded from the lien and operation of the Mortgage only to the extent
provided therein), including, but without otherwise limiting the
generality of the foregoing, the following described property situated
within the State of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired by it
after May 1, 1940, the date of the Original Mortgage, and located in
the Counties of Bartholomew, Boone, Daviess, Gibson, Greene, Hamilton,
Hancock, Hendricks, Johnson, Knox, Madison, Marion, Monroe, Morgan,
Owen, Pike, Putnam, Shelby and Sullivan, State of Indiana; and any
additions to or extensions of any such systems, together with the
buildings, erections, structures, transmission lines, power stations,
sub-stations, engines, boilers, condensers, pumps, turbines, machinery,
tools, conduits, manholes, insulators, dynamos, motors, lamps, cables,
wires, poles, towers, cross-arms, piers, abutments, switchboard
equipment, meters, appliances, instruments, apparatus, appurtenances,
maps, records, ledgers, contracts, facilities and other property or
equipment used or provided for use in connection with the construction,
maintenance, repair and operation thereof; together also with all of
the rights, privileges, rights-of-way, franchises, licenses, grants,
liberties, immunities, ordinances, permits and easements of the Company
in respect of the construction, maintenance, repair and operation of
said systems.
PART II.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems acquired by the
Company after May 1, 1940, the date of the Original Mortgage, and
located in the City of Indianapolis, Marion County, Indiana, and any
additions to or extensions of any such systems; together with the
buildings, erections, structures, boilers, heaters, engines, tanks,
pipe lines, mains, connections, service pipes, meters, tools,
instruments, appliances, apparatus, facilities, machinery and other
property and equipment used or provided for use in the construction,
maintenance, repair and operation thereof; and together also with all
of the rights, privileges, rights-of-way, franchises, licenses, grants,
liberties, immunities, ordinances, permits and easements of the Company
in respect of the construction, maintenance, repair and operation of
said systems.
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances, licenses, and
other authorizations by or from any state, county, municipality, or
other governmental authority, acquired by the Company after May 1,
1940, the date of the Original Mortgage, including particularly, but
not limited to, any indeterminate permits under the Public Service
Commission Act of the State of Indiana, and all Acts amendatory thereof
and supplemental thereto, and all right, title and interest therein now
owned by the Company, and all renewals, extensions and modifications of
said indeterminate permits, franchises, ordinances, licenses, and other
authorizations, and of the indeterminate permits, franchises,
ordinances, licenses, and other authorizations referred to in Part VII
of the Granting Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed (except any in
the Mortgage expressly excepted), now owned by the Company and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same the scope and intent of the
foregoing or of any general description contained in the Mortgage) all
lands, flowage rights, water rights, flumes, raceways, dams,
rights-of-way and roads; all plants for the generation of electricity
by water, steam and/or other power, power houses, telephone systems,
water systems, steam heat and power plants, hot water plants,
sub-stations, transmission lines, distribution systems, bridges,
culverts and tracts; all offices, buildings and structures and the
equipment thereof; all machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors; all appliances
whether electrical, gas or mechanical, conduits, cables and lines; all
pipes whether for water, steam heat and power, or other purposes; all
mains and pipes, service pipes, fittings, valves and connections,
poles, wires, tools, implements, apparatus, furniture and chattels; all
municipal franchises, indeterminate permits, and other permits; all
lines for the transportation, transmission and/or distribution of
electric current, steam heat and power or water for any purpose,
including towers, poles, wires, cables, pipes, conduits and all
apparatus for use in connection therewith; all real estate, lands,
leases, leaseholds; all contracts, whether heat, light, power, water or
street lighting contracts; all easements, servitudes, licenses,
permits, rights, powers, franchises, privileges, rights-of-way and
other rights in or relating to real estate or the occupancy of the same
and (except as hereinafter or in the Mortgage expressly excepted) all
the right, title and interest of the Company in and to all other
property of any kind or nature appertaining to and/or used and/or
occupied and/or enjoyed in connection with any property hereinbefore
described or referred to;
Together with all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid
property or any part thereof, with the reversion and reversions,
remainder and remainders and (subject to the provisions of Section 64
of the Original Mortgage), the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the estate,
right, title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to
the aforesaid property, indeterminate permits, franchises, ordinances,
licenses and other authorizations and every part and parcel thereof.
Section 2. There shall be and is hereby established a series of
bonds, limited in aggregate principal amount to Forty Million Dollars
($40,000,000) to be issued under and secured by the Mortgage, to be
designated ''5.21% Series, due 2023'', each of which shall also bear
the descriptive title ''First Mortgage Bonds''; said bonds shall mature
on January 1, 2023, and shall be issued only as fully registered bonds
without coupons in the denomination of five thousand dollars and any
larger denomination which is a whole multiple of five thousand dollars;
they shall be payable on the dates, at the times and in the amounts
required by the Swap Agreement and the Insurance Agreement; provided,
however, that the amount payable hereunder shall not exceed the
principal amount of $40,000,000 plus interest at the per annum rate of
5.21% and shall be payable in lawful money of the United States of
America at the office of the Company in the City of Indianapolis,
Indiana, or, if no such office is maintained, at American National Bank
and Trust Company of Chicago, which is hereby designated and appointed
the office and agency of the Company in the City of Chicago, Illinois,
for the payment of amounts due hereunder, if necessary, and for the
registration, transfer and exchange of such bond as hereinafter
provided; all reference herein to the office or agency of the Company
in the City of Chicago, Illinois, being to American National Bank and
Trust Company of Chicago. In event of the resignation or inability to
act of American National Bank and Trust Company of Chicago, then a
successor agent for all such purposes in the City of Chicago, Illinois,
shall be appointed by the Board of Directors of the Company.
The 2023 PC Bond shall be dated as of the date of authentication
thereof, except as otherwise provided in Section 10 of the Original Mortgage.
The 2023 PC Bond will be issued to evidence and secure the
reimbursement obligations of the Company to AMBAC under the Insurance
Agreement for the payment by AMBAC of the principal of and interest on
the Series 1995B Bonds pursuant to the Municipal Bond Insurance Policy,
and to secure payments made by the Company to AFSLP under the Swap
Agreement.
Upon the notice and in the manner and with the effect provided in
this Section 2, the 2023 PC Bond shall be redeemable prior to the
maturity thereof in whole or in part at the times, and in the amounts
that corresponding redemptions are made on the Series 1995B Bonds and
to the extent that a corresponding reduction occurs in the notional
amount under the Swap Agreement.
The Company shall provide notice to the Trustee of a reduction, in
whole or in part, in the notional amounts owing under the Swap
Agreement and a corresponding reduction, in whole or in part, in the
outstanding principal amount of the Series 1995B Bonds, and the Trustee
shall thereafter notify the holders of such event and request the
holders to surrender their 2023 PC Bonds for cancellation; or, in the
case of a partial reduction, surrender of the bonds in connection with
the issuance of replacement bonds in denominations equal to the
remaining notional amount owing under the Swap Agreement and the
outstanding principal amount of the Series 1995B Bonds.
At the option of the holder, the 2023 PC Bond, upon surrender
thereof at the office or agency of the Company in Chicago, Illinois,
together with a written instrument of transfer in form approved by the
Company duly executed by the holder or by his duly authorized attorney,
shall be exchangeable for a like aggregate principal amount of fully
registered bonds of the same series of other authorized denominations.
The 2023 PC Bond will be nontransferable except with the prior
written consent of the Company and to the Company. To the extent that
it is transferable, it is transferable by the registered holder
thereof, in person or by attorney duly authorized in writing, on the
books of the Company at the office or agency of the Company in the City
of Chicago, Illinois, upon surrender thereof for cancellation at said
office and upon presentation of a written instrument of transfer duly
executed. Thereupon, the Company shall issue in the name of the
transferee, and the Trustee shall authenticate and deliver, a new
registered 2023 PC Bond or Bonds, in authorized denominations, of equal
aggregate principal amount. Any such transfer shall be subject to the
terms and conditions specified in the Mortgage and in this Forty-Second
Supplemental Indenture.
Except as set forth herein, no charge shall be made upon any
transfer or exchange of any of the 2023 PC Bond other than for any tax
or taxes or other governmental charge required to be paid by the Company.
The 2023 PC Bond shall be limited to an aggregate principal amount
of Forty Million Dollars ($40,000,000), together with interest at the
per annum rate of 5.21% from the date of authentication to maturity,
(such total obligation hereinafter referred to as the ''Stated
Amount'') and shall be issued under the provisions of Article VII of
the Original Mortgage.
Section 3. The 2023 PC Bond, and the Trustee's Certificate to be
endorsed thereon, shall be in the following forms, respectively:
[form of face of 2023 pc bond]
This First Mortgage Bond, 5.21% Series, due 2023 (hereinafter called
the ''2023 PC Bond'') is not transferable except with the prior written
consent of the Company, or to Indianapolis Power & Light Company.
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 5.21% Series, Due 2023
Due January 1, 2023
No. 1 $40,000,000
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the State of
Indiana (hereinafter called the ''Company''), for value received,
hereby promises to pay to AMBAC Indemnity Corporation the Bond
Obligations (as defined in the hereinafter defined Indenture) and to
AMBAC Financial Services, Limited Partnership the Swap Obligations (as
defined in the hereinafter defined Indenture) payable on the dates and
at the times required by the Insurance Agreement and the Swap Agreement
(both as defined in the hereinafter defined Indenture) in lawful money
of the United States of America; provided, however, that the amount
payable hereunder shall not exceed the principal amount of $40,000,000
plus interest at the per annum rate of 5.21%. The amounts payable
hereunder are subject to reduction in the manner described in the
Indenture in the event of reductions in the Bond Obligations and the
Swap Obligations. The amounts payable hereunder will be paid to the
registered owner of this 2023 PC Bond at or before the close of
business on such dates, or if such date shall be a Saturday, Sunday,
holiday or a day on which banking institutions in the City of
Indianapolis or the city of any paying agents are authorized by law to
close, on or before the close of business on the next succeeding
business day on which such banking institutions are open for business.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS 2023 PC BOND SET
FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL, FOR ALL
PURPOSES, HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
No recourse shall be had for any amounts payable on this 2023 PC
Bond against any incorporator or any past, present or future subscriber
to the capital stock, stockholder, officer or director of the Company
or of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute, or constitution or by the
enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, stockholders, officers and directors, as
such, being waived and released by the terms of the Mortgage, as herein
defined.
This 2023 PC Bond shall not become obligatory until American
National Bank and Trust Company of Chicago, the Trustee under the
Mortgage, as herein defined, or its successor thereunder, shall have
signed the form of certificate endorsed hereon.
In Witness Whereof, Indianapolis Power & Light Company has caused
this 2023 PC Bond to be signed in its name by its President or its
Treasurer, by his signature or a facsimile thereof, and its corporate
seal to be affixed hereon, attested by its Secretary or one of its
Assistant Secretaries, by his signature or a facsimile thereof.
Indianapolis Power & Light Company
Dated By
Treasurer
Attest:
By
Secretary
[form of trustee's certificate on 2023 pc bond]
Trustee's Certificate
This 2023 PC Bond is one of the bonds, of the series herein
designated, provided for in the within-mentioned Mortgage and
Forty-Second Supplemental Indenture thereto.
American National Bank and Trust
Company of Chicago
Trustee
By
Authorized Signature
[form of reverse side of 2023 pc bond]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond, 5.21% Series, due 2023
Due January 1, 2023
This 2023 PC Bond is one of an issue of bonds of the Company,
issuable in series, and is one of a series known as its First Mortgage
Bonds, 5.21% Series, due 2023 (herein called the ''2023 PC Bond'')
limited in aggregate principal amount to Forty Million Dollars
($40,000,000) and established by a Forty-Second Supplemental Indenture
dated as of October 1, 1995 (the ''Indenture''), all bonds of all
series issued and to be issued under and equally secured (except
insofar as any sinking or other fund, established in accordance with
the provisions of the Mortgage hereinafter mentioned, may afford
additional security for the bonds of any particular series) by a
Mortgage and Deed of Trust, dated as of May 1, 1940, executed by the
Company to American National Bank and Trust Company of Chicago, as the
Trustee (which Mortgage and Deed of Trust as supplemented and modified
by all supplemental indentures thereto is hereinafter referred to as
the ''Mortgage''), to which Mortgage reference is made for a
description of the property mortgaged and pledged, the nature and
extent of the security, the rights of the bearers or registered owners
of the bonds in respect of such security, the duties and immunities of
the Trustee and the terms and conditions upon which the bonds are secured.
This 2023 PC Bond evidences and secures the reimbursement
obligations of the Company to AMBAC under the Insurance Agreement for
the payment by AMBAC of the principal of and interest on the Series
1995B Bonds pursuant to the Municipal Bond Insurance Policy, and to
secure certain payments made by the Company to AFSLP under the Swap
Agreement. Anything herein to the contrary notwithstanding, all amounts
constituting Settlement Amounts, as defined in the Swap Agreement,
shall not be payable hereunder or secured hereby.
This 2023 PC Bond is subject to redemption in whole or in part at
the times and in the amounts that corresponding redemptions are made on
the Series 1995B Bonds and to the extent that a corresponding reduction
occurs in the notional amount under the Swap Agreement.
With the consent of the Company and to the extent permitted by and
as provided in the Mortgage, the rights and obligations of the Company
and/or of the holders of the bonds and/or coupons and/or the terms and
provisions of the Mortgage and/or any instruments supplemental thereto
may be modified or altered by affirmative vote of the holders of at
least sixty-six and two-thirds per centum (662/3%) in principal amount
of the bonds affected by such modification or alteration then
outstanding under the Mortgage (excluding bonds disqualified from
voting by reason of the Company's interest therein as provided in the
Mortgage); provided that no such modification or alteration shall
permit the extension of the maturity of the principal of this 2023 PC
Bond or the reduction in the rate of interest hereon or any other
modification in the terms of payment of amounts owing hereunder without
the consent of the holder hereof. The principal hereof may be declared
or may become due and payable prior to the stated date of maturity
hereof, on the conditions, in the manner and at the time set forth in
the Mortgage, upon the occurrence of a completed default as in the
Mortgage provided.
No reference herein to the Mortgage, and no provision of this 2023
PC Bond or of the Mortgage, shall alter or impair the obligation of the
Company, to pay, subject to the provisions of the Forty-Second
Supplemental Indenture, all amounts owing under the Swap Agreement and
the Insurance Agreement at the place, at the respective times and in
the manner herein prescribed.
This 2023 PC Bond is issuable only in full registered form without
coupons in denominations of Five Thousand Dollars and any larger
denomination which is a whole multiple of Five Thousand Dollars.
This 2023 PC Bond will be nontransferable except with the prior
written consent of the Company and to the Company. To the extent that
it is transferable, it is transferable by the registered holder
thereof, in person or by attorney duly authorized in writing, on the
books of the Company at the office or agency of the Company in the City
of Chicago, Illinois, upon surrender thereof for cancellation at said
office and upon presentation of a written instrument of transfer duly
executed. Thereupon, the Company shall issue in the name of the
transferee, and the Trustee shall authenticate and deliver, a new
registered 2023 PC Bond or Bonds, in authorized denominations, of equal
aggregate principal amount. Any such transfer shall be subject to the
terms and conditions specified in the Mortgage and in the Forty-Second
Supplemental Indenture.
[end of 2023 pc bond form]
Section 4. Until the 2023 PC Bond in definitive form is ready for
delivery, the Company may execute, and upon its request in writing the
Trustee shall authenticate and deliver, in lieu thereof, a fully
registered 2023 PC Bond in temporary form, as provided in Section 15 of
the Original Mortgage. Such bond may, in lieu of the statement of the
specific redemption prices required to be set forth in such bond in
definitive form, include a reference to this Forty-Second Supplemental
Indenture for a statement of such redemption prices.
Section 5. The Company covenants and agrees that it will duly and
punctually pay to the holder of the 2023 PC Bond all amounts due and
owing under the Swap Agreement or the Insurance Agreement up to the
Stated Amount, at the dates and place and in the manner mentioned
therein; provided, however, that:
(a) the obligation of the Company hereunder to AFSLP shall be
discharged upon termination of the Swap Agreement and payment of all
amount owing thereunder; and
(b) the obligation of the Company hereunder to AMBAC shall be
discharged upon termination of the Swap Agreement together with the
delivery to the Trustee under the Indenture of Trust dated as of
October 1, 1995 between the City and Bank One, Indianapolis, NA, as
Trustee, of a new First Mortgage Bond in the principal amount of the
Series 1995B Bonds then outstanding.
Upon payment of all amounts owing hereunder, the 2023 PC Bond is paid
or deemed paid in full, and upon its receipt by the Company, such bond
shall be delivered to the Trustee for cancellation. The Company shall
promptly inform the Trustee of all payments made and credits availed of
with respect to its obligations on the 2023 PC Bond. The Trustee shall
not be required to recognize any payment made or credit availed of with
respect to any 2023 PC Bond unless it has received (a) the bond for
cancellation by it, or (b) certificates signed by duly authorized
officers of AMBAC Indemnity or AFSLP specifying the amount of such
payment or credit. In the absence of receipt by the Trustee of any 2023
PC Bond, any such certificates shall be controlling and conclusive.
Section 6. The covenant of the Company to make annual payments to
the Trustee for a Maintenance and Improvement Fund as contained in
Section 41 of the Original Mortgage and in the first twenty-four
Supplemental Indentures to the Original Mortgage creating the several
series of First Mortgage Bonds presently outstanding under such
Supplemental Indentures shall not apply to nor be for the benefit of
the 2023 PC Bond, and the Company reserves the right, without any
consent of, or other action by, the holder of the 2023 PC Bond, to
amend, modify or delete the provisions of the Mortgage relating to such
Maintenance and Improvement Fund and by acceptance of the 2023 PC Bond
the holder thereof waives any right or privilege so to consent or take
any other action with respect thereto.
Section 7. The Company covenants that, so long as the 2023 PC Bond
shall remain outstanding, it will comply with all of the provisions of
Section 47 of the Original Mortgage, including the provisions with
respect to limitations on dividends and distributions and the purchase
and redemption of stock.
Section 8. The Trustee hereby accepts the trusts herein declared,
provided and created and agrees to perform the same upon the terms and
conditions herein and in the Mortgage set forth and upon the following
terms and conditions:
The recitals contained herein and in the bonds shall be taken as the
statements of the Company and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representations as to
the validity or adequacy of the security afforded hereby, or as to the
validity of this Forty-Second Supplemental Indenture or of the 2023 PC
Bond issued hereunder.
Section 9. Whenever in this Forty-Second Supplemental Indenture
either of the parties hereto is named or referred to, this shall,
subject to the provisions of Article XVII of the Original Mortgage, be
deemed to include the successors or assigns of such party, and all the
covenants and agreements in this Forty-Second Supplemental Indenture
contained by or on behalf of the Company, or by or on behalf of the
Trustee, shall, subject as aforesaid, bind and inure to the benefit of
the respective successors and assigns of such parties, whether so
expressed or not.
Section 10. Nothing in this Forty-Second Supplemental Indenture
expressed or implied, is intended or shall be construed to confer upon,
or to give to, any person, co-partnership or corporation, other than
the parties hereto and the holders of the bonds and coupons outstanding
under the Mortgage, any right, remedy, or claim under or by reason of
this Forty-Second Supplemental Indenture or any covenant, condition or
stipulation hereof; and all the covenants, conditions, stipulations,
promises and agreements in this Forty-Second Supplemental Indenture
contained by or on behalf of the Company shall be for the sole and
exclusive benefit of the parties hereto and of the holders of the bonds
and of the coupons outstanding under the Mortgage.
Section 11. The Company covenants that all of the terms, provisions
and conditions of the Mortgage shall be applicable to the 2023 PC Bond
issued hereunder, except as herein otherwise provided and except
insofar as the same may be inconsistent with the provisions of this
Forty-Second Supplemental Indenture.
Section 12. This Forty-Second Supplemental Indenture is dated as of
October 1, 1995, although executed and delivered on the date of the
acknowledgement hereof by the Trustee; and shall be simultaneously
executed and delivered in several counterparts, and all such
counterparts executed and delivered, each as an original, shall
constitute but one and the same instrument.
In Witness Whereof, Indianapolis Power & Light Company, party of the
first part, has caused its corporate name to be hereunto affixed and
this instrument to be signed and acknowledged by its Vice-President or
Treasurer, and its corporate seal to be hereto affixed and attested by
its Secretary or an Assistant Secretary, for and in its behalf, and
American National Bank And Trust Company Of Chicago, party of the
second part, as Trustee, has caused its corporate name to be hereunto
affixed and this instrument to be signed and acknowledged by one of its
Vice-Presidents, and its corporate seal to be hereto affixed and
attested by one of its Assistant Secretaries, all as of the day, month
and year first above written.
Indianapolis Power & Light Company,
/s/ Steven L. Meyer
By Steven L. Meyer,
Treasurer
Attest:
/s/ Wendy V. Yerkes
Wendy V. Yerkes,
Assistant Secretary
American National Bank And Trust Company of
Chicago
/s/ Ronald B. Bremen
By Ronald B. Bremen,
Vice-President
Attest:
(Seal)
/s/ Robert M. Selangowski
Robert M. Selangowski,
Assistant Secretary
State of Indiana )
) ss:
County of Marion )
On this 12th day of October, in the year 1995, before me, a Notary
Public in and for the County and State aforesaid, personally came
Steven L. Meyer, Treasurer, and Wendy V. Yerkes, Assistant Secretary, of
Indianapolis Power & Light Company, one of the corporations described
in and which executed the foregoing instrument, to me personally known
and known to me personally to be such Treasurer and Assistant
Secretary, respectively. Said Steven L. Meyer and Wendy V. Yerkes being
by me severally duly sworn did depose and say that the said Steven L.
Meyer resides in Marion County, Indiana and the said Wendy V. Yerkes
resides in Marion County, Indiana; that said Steven L. Meyer is
Treasurer and said Wendy V. Yerkes is Assistant Secretary of said
Indianapolis Power & Light Company; that each of them knows the
corporate seal of said corporation; that the seal affixed to said
instrument and bearing the name of said corporation is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation; and that each of them signed his name thereto by like
order; and each of them acknowledged the execution of said instrument
on behalf of said corporation to be his free and voluntary act and deed
and the free and voluntary act and deed of said corporation, for the
uses and purposes therein set forth.
In Witness Whereof, I have hereunto set my hand and affixed my
official seal this 12th day of October, 1995.
/s/ Sandra L. Stewart
Sandra L. Stewart
Notary Public
My Commission Expires:
July 24, 1998
My County of Residence is:
Johnson
(Notarial Seal)
State of Illinois )
) ss:
County of Cook )
On this 12th day of October, in the year 1995, before me, a Notary
Public in and for the County and State aforesaid, personally came Ronald B.
Bremen, Vice-President, and Robert M. Selangowski, Assistant
Secretary, of American National Bank and Trust Company of Chicago, one
of the corporations described in and which executed the foregoing
instrument, to me personally known and known to me personally to be
such Senior Vice-President and Assistant Secretary, respectively. Said
Ronald B. Bremen and Robert M. Selangowski, being by me severally sworn
did depose and say that the said Ronald B. Bremen resides in Glencoe,
Illinois, and that the said Robert M. Selangowski resides in Lansing,
Illinois; that said Ronald B. Bremen is Vice-President and said Robert M.
Selangowski is Assistant Secretary of said American National Bank and Trust
Company of Chicago; that each of them knows the corporate seal of said
corporation; that the seal affixed to said instrument and bearing the
name of said corporation is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation; that each
of them signed his name thereto by like authority; and each of them
acknowledged the execution of said instrument on behalf of said
corporation to be his free and voluntary act and deed and the free and
voluntary act and deed of said corporation, for the uses and purposes
therein set forth.
In Witness Whereof, I have hereunto set my hand and affixed my
official seal this 12th day of October, 1995.
/s/ Bernadette G. Janairo
Bernadette G. Janairo
Notary Public
My Commission Expires:
May 22, 1998
My County of Residence is:
Cook
(Notarial Seal)
This instrument was prepared by
Bryan G. Tabler
Exhibit 10.2
THIRD AMENDMENT
to the
INTERCONNECTION AGREEMENT
,dated May 1, 1992,
among
INDIANAPOLIS POWER & LIGHT COMPANY
and
PSI ENERGY, INC.
and
CINERGY SERVICES, INC.
Dated June 30, 1995
INDIANAPOLIS POWER & LIGHT COMPANY
FEDERAL ENERGY REGULATORY COMMISSION
Rate Schedule FERC No. 23
CINERGY COMPANIES
FEDERAL ENERGY REGULATORY COMMISSION
Rate Schedule FERC No. 10
INDEX
SECTION ONE: Agreement As Amended
Interconnection Agreement Between
Indianapolis Power & Light Company, and
The Cincinnati Gas & Electric Company,
PSI Energy, Inc., and CINergy Services, Inc.,
dated June 30, 1995
SECTION TWO: Agreement As Signed
Interconnection Agreement Between
Indianapolis Power & Light Company, and
The Cincinnati Gas & Electric Company,
PSI Energy, Inc., and CINergy Services, Inc.,
dated June 30, 1995
THIRD AMENDMENT
TO THE
INTERCONNECTION AGREEMENT
AMONG
INDIANAPOLIS POWER & LIGHT COMPANY
and
PSI ENERGY, INC.
AND CINERGY SERVICES, INC.
0.01 THIS THIRD AMENDMENT, dated on the 30th day of June
1995, among INDIANAPOLIS POWER & LIGHT COMPANY (hereinafter
referred to as "IPL"), a corporation organized and existing
under the laws of the State of Indiana and PSI ENERGY, INC.
(hereinafter referred to as "PSI"), a corporation organized
and existing under the laws of the State of Indiana, and
CINERGY SERVICES, INC. (hereinafter referred to as "CINergy
Services"), a corporation organized and existing under the
laws of the State of Delaware. IPL, PSI and CINergy Services
are sometimes hereinafter referred to individually as "Party"
and collectively as "Parties" where appropriate.
W I T N E S S E T H:
0.02 WHEREAS, There is now in force and effect between
IPL and PSI an Interconnection Agreement, dated as of May 1,
1992, (said Interconnection Agreement being the Ninth
Supplement to the 1962 Interconnection Agreement between IPL
and PSI, herein called the "1992 Agreement"); and
0.03 WHEREAS, The Cincinnati Gas & Electric Company
("CG&E") and PSI merged on October 24, 1994, and formed
CINergy Corp. with CG&E and PSI now being called the "CINergy
Operating Companies"; and
0.04 WHEREAS, CG&E, PSI and CINergy Services are parties
to a Service Agreement, dated March 2, 1994, which has been
approved by the Securities and Exchange Commission and the
Indiana Utility Regulatory Commission (IURC), under which
CINergy Services will act as PSI*s agent in administering
PSI*s interconnection agreements and the three companies are
also parties to an Operating Agreement, dated March 2, 1994,
on file with and accepted by the FERC and approved by the
IURC under which CINergy Services will dispatch the
generating units of CG&E, PSI and CINergy Services; and
0.05 WHEREAS, the Parties desire to modify the 1992
Agreement, as hereinafter set forth; and
0.06 NOW, THEREFORE, in consideration of the premises
and mutual covenants and agreements of the Parties, as herein
set forth, the Parties hereby agree as follows:
ARTICLE 1
PROVISIONS FOR, AND CONTINUITY OF
INTERCONNECTED OPERATION
1.01. Interconnection Points. The respective
138,00 volt and 345,000 volt transmission systems of IPL and
PSI are presently interconnected at the following points:
(i) The 138kV Five Points Interconnection Point
(ii) The 345kV Whitestown Interconnection Point
(iii) The 345kV Gwynneville Interconnection Point
(iv) The 138kV Petersburg Interconnection Point
(v) The 345kV Petersburg Interconnection Point
(vi) The 138kV Centerton Interconnection Point
(vii) The 138kV Carmel Tap Point
1.02. Future Interconnection Points. The services
provided for by the 1992 Agreement may also be rendered
through such other points of interconnection as the Parties
may later agree upon by amending the 1992 Agreement.
1.03. Synchronous Operation. The Parties mutually
agree that, except as provided in Service Schedule D hereof,
their respective systems will be continuously operated in
parallel (except in cases of interruption of such parallel
operation due to mutually agreed upon maintenance or due to
causes beyond the control of either Party, or due to the
necessity of an interruption of parallel operation in order
that the native load directly served by either Party may
continue to receive adequate service from such Party). If
synchronous operation of the systems through a particular
line or lines become interrupted either manually or
automatically because of any of the above-stated reasons, the
Parties shall cooperate so as to remove the cause of such
interruption as soon as practicable and restore such line or
lines to normal operating condition.
1.03.1. Inadvertent Flow. It is recognized that
in interconnected system operation, power and reactive
flow will exist on an interconnection due to scheduled
power flow from either Party to third parties or between
third parties. This inadvertent power flow depends
mainly on the design of the internal systems of the
Parties and the interconnected system, and the schedules
of power flows on the interconnections.
1.03.2. Interruption of Operation. If, in the
sole judgment of either Party, the power or reactive
flow over the interconnection facilities of either Party
is excessive to the extent that it jeopardizes the
reliability of either Party*s service to its customers,
the Parties shall attempt to agree upon adequate
corrective measures to eliminate or control such
excessive power or reactive flow; provided, however,
that in the event such a situation exists, the Party so
burdened shall have the right, with notice when possible
to the other Party, to open and leave open one or all of
the interconnections between the respective systems of
the Parties until corrective action has been taken. The
Parties further agree to study and negotiate the
installation, ownership, and cost of any additional
equipment necessary to effect a long-term solution to
any such excessive loading as herein described in the
event either Party determines that this interconnection
contributes to the excessive loading and requests such
negotiation.
1.04. Maintenance of Equipment. Each of the
Parties shall keep, or shall cause to be kept, the
transmission lines together with all associated equipment and
appurtenances that are located on their respective sides of
the Interconnection Points specified in Section 1.01 hereof,
or agreed upon pursuant to Section 1.02 hereof, in a
suitable condition of repair at all times, each at its own
expense, in order that said transmission lines will operate
in a reliable and satisfactory manner and in order that
reduction in the effective capacity of said transmission
lines will be avoided to the extent practicable.
ARTICLE 2
SERVICES TO BE RENDERED
2.01. Interconnection Services Schedules. It is
the purpose of the Parties to seek and realize, on an
equitable basis, all benefits which may be practicably
effected through coordination in the operation and
development of their respective systems. It is understood by
the Parties that such benefits may be realized by each of
them by carrying out under stated terms and conditions
various interconnection services and transactions that may
from time to time include among others:
(i) The furnishing of emergency service,
(ii) The interchange, sale, and purchase of energy to
effect operating economies,
(iii) The sale and purchase of short term electric
power and energy available on the system of one
Party and needed on the system of the other, and
(iv) The transmission of power and energy on the basis
of simultaneous transfers.
In furtherance of such purpose, the Parties shall create, and
continue the functioning of, an Operating Committee, as
provided in Article 7 hereof.
2.02. Specific Terms and Conditions. Since the
specific services to be rendered in furtherance of such
purpose will vary during the term of the 1992 Agreement, and
the terms and conditions applicable to such services may
require modification from time to time, it is intended that
such specific services and the terms and conditions
applicable thereto will be set forth in Service Schedules
mutually agreed upon between the parties. Such Service
Schedules, unless and until changed, terminated, or
supplemented, shall be those specified in Section 2.03
hereof. If a Service Schedule under the 1992 Agreement is
changed or supplemented, such Service Schedule shall be fully
restated in order to reflect such change or supplement.
2.03. Service Schedules. The respective Service
Schedules designated
Service Schedule A - Emergency Service
Service Schedule B - Interchange Energy
Service Schedule C - Short Term Power and Energy
Service Schedule D - Carmel Southeast Tap Power & Energy Transfer
have been agreed upon between the Parties, are identified as
Exhibits I, II, III, and IV, respectively, to the 1992
Agreement and are attached hereto and made a part hereof the
same as if incorporated herein. It is contemplated by the
Parties that all additional mutually agreed upon Service
Schedules will be made a part of the 1992 Agreement upon
presentation and acceptance thereof.
2.04. Out-Of-Pocket Costs. The term "Out-of-
Pocket Cost" of energy from generating units on the system of
a Party shall consist of any costs that are directly incurred
by IPL or PSI by reason of its generation of such energy and
which otherwise would not have been incurred by such system
including, but not limited to, fuel, labor, operation,
maintenance, start-up, fuel handling, taxes, regulatory
commission charges, and emission allowances.
"Out-of-Pocket Cost" of energy purchased from a third party
by the supplying Party shall consist of the total amount paid
therefore by the supplying Party which otherwise would not
have been paid by such Party, plus any cost which otherwise
would not have been incurred, including, but not limited to,
regulatory commission charges, emission allowances,
transmission losses and taxes related to such transaction.
Tax expenses will be the expenses that are incurred as taxes
either in connection with the sale or production of such
energy.
2.05. Emission Allowances. The federal Clean Air Act,
as amended, 42 U.S.C. Section 7401 et seq. (hereinafter
referred to as "Clean Air Act"), establishes certain annual
maximum sulfur dioxide ("SO2") levels, stated in terms of
required emission allowances, for flue gases emitted by
electric generating units, including units operated by IPL,
PSI and other electric utilities who may supply electric
energy for transactions under this 1992 Agreement. The
generator of the electric energy supplied and delivered under
this 1992 Agreement is required by the Clean Air Act to have
adequate "allowances" (as defined by Section 402(3) of the
Clean Air Act in conjunction with Section 403(f) of the Clean
Air Act) in order to generate such electric energy. To the
extent that either IPL or PSI are required by the Clean Air
Act to have additional allowances by reason of its generation
of electric energy to be supplied by it under this 1992
Agreement, which allowances would otherwise not have been
required by such supplying Party, then, unless the supplying
Party otherwise agrees in advance in writing, at the
discretion of the supplying Party, the Party receiving such
energy shall be responsible for the cost or the actual
furnishing (without cost to the supplying Party) of adequate
allowances to the supplying Party in order for such Party to
supply such energy under this Agreement. The Parties shall
establish, by mutual agreement, appropriate procedures in
order to carry out the provisions of this Section 2.05,
including a statement of costs before any transactions under
the Service Schedules attached hereto are started. Also,
prior to implementation of every transaction under the
Service Schedules attached hereto, the purchasing Party must
declare whether they will pay in cash or return SO2
Allowances in-kind for any consumption of SO2 Allowances
directly attributed to such transaction, if any.
It shall be the responsibility of the supplying Party to
provide the receiving Party, before the transaction begins,
with a statement of the estimated emission allowance charges
associated with the transaction which the supplying Party is
seeking to add to the rates to be charged under the
applicable Service Schedule. Failure of the supplying Party
to provide a statement of such charges before the transaction
begins shall constitute a waiver of the recovery of any such
costs. In establishing such procedures, the Parties shall
recognize that the determination of the additional allowances
required in order to generate the electric energy to be
supplied hereunder is subject to variables contingent upon
the loading and operating conditions on the system where the
actual generation occurs. The procedures so established by
the Parties shall be in accord with sound engineering
principles of power plant and system operation, and shall
require the furnishing of such additional allowances at such
times and in such amounts as will be equitable to the
supplying Party.
When IPL is the supplier of energy and emission allowances,
the recovery of the applicable costs for the actual
furnishing of adequate allowances in order for IPL to
generate and supply such energy will be implemented in the
following manner:
(1) The Buyer shall compensate IPL for the consumption
of Sulfur Dioxide Emissions Allowances ("SO2 Allowances")
directly attributed to electric energy sales by IPL to Buyer
under the Service Schedules. Such compensation shall, at
Buyer*s option, be made by either supplying IPL with the
number of SO2 Allowances directly attributed to such energy
sales, or by reimbursing IPL for the incremental cost of such
number of SO2 Allowances, rounded to the nearest whole SO2
Allowance.
(1) If Buyer opts to reimburse IPL in cash for SO2
Allowances associated with Buyer*s energy purchases for
the month, the cash amount due at billing will be
determined by multiplying the number of SO2 Allowances
attributed to the sale by the incremental cost of the
SO2 Allowances, as determined in Subsection 2(b) of this
Section 2.05, at the time of the sale.
If Buyer opts to reimburse IPL in SO2 Allowances, Buyer
will record or transfer to IPL*s account, the number of
SO2 Allowances calculated below, at the time cash
settlement for the energy is due. In all cases, Buyer
will transfer to IPL*s account the number of SO2
Allowances due IPL for calendar year no later than
January 15 of the following year. "Transfer to IPL*s
account" shall mean, for purposes of the Amendment, the
transfer by the USEPA of the requisite number of SO2
Allowances to IPL*s Allowance Tracking System account
and the receipt by IPL of the Allowance Transfer
Confirmation.
(2) Determination of SO2 Emission Allowances Due IPL
(a) Number of SO2 Allowances
The number of SO2 Allowances directly attributed to
an energy sale made by IPL shall be determined for
each hour, by determining the contribution from
each of the unit(s) from which the energy sale is
being made for that hour. For each unit, the
emission rate in pounds of SO2 per million Btu will
be determined each month, from fuel sulfur content,
control equipment performance, and continuous
emissions monitoring data. The emission rate and
the unit heat rate will be used to determine the
SO2 Allowances used per megawatt-hour ("MWH"). The
energy from each unit attributable to the sale, and
the SO2 Allowances per MWH for each unit, will be
used to determine the number of SO2 Allowances
attributable to the sale.
(b) Cost of SO2 Allowances
The incremental SO2 Allowance cost used to
determine economic dispatch of IPL*s generating
units in any month, will also be the basis used to
determine compensation for IPL*s energy sales. The
incremental SO2 Allowances cost, in dollars per ton
of SO2, shall be determined each month and will be
based on the Cantor Fitzgerald offer price for SO2
Allowances, or if such is not available, then
another nationally recognized SO2 Allowance trading
market price or market price index, at the
beginning of the month. The SO2 Allowance value
may be changed at any time during the month to
reflect the more current incremental cost, or
market price, for SO2 Allowances. Buyer will be
notified of the new SO2 Allowance value prior to
dispatch of IPL energy to Buyer.
When PSI is the supplier of energy and emission
allowances, the recovery of the applicable costs for the
actual furnishing of adequate allowances in order for
PSI to generate and supply such energy will be
implemented in the following manner:
(1) The current Environmental Protection Agency ("EPA")
auction price to value emission allowances will be used
for energy sales transactions. The dispatch criteria
may be revised from time to time if the emission
allowance purchases on the average are determined to be
significantly different than the EPA auction price.
(2) For each hour in which there is a transaction for energy
services using an Out-of-Pocket Cost rate under this
1992 Agreement, PSI will:
(a) identify the generation sources used to provide the
transaction*s energy by identifying the energy that
would not have been used had the transaction not
been in effect that hour by using the same after-
the-fact incrementing costing model that is used to
calculate the incremental cost of fuel under this
1992 Agreement;
(b) determine, using the following formula, the
quantity of emission allowances related to the
energy transaction: (i) by calculating an
incremental heat rate for the appropriate
generating unit and the corresponding incremental
SO2 emission levels, as determined by the computer
based tools, for the identified units dispatched to
serve the transaction; (ii) applying the following
formula for each such unit; (iii) adding together
the total number of tons of SO2 produced per
million BTU (i.e., British Thermal Unit) of fuel
burned by each such unit for the transaction; and
(iv) letting one (1) emission allowance equal one
(1) ton of SO2 so produced.
# OF UNITS
E [MBTU SALE - MBTU NO SALE] * [SO2] * [100%-SE]
100%
MBTU SALE = Million BTU consumed on unit n with sale.
MBTU NO SALE = Million BTU consumed on unit n without sale.
SO2 = Tons of SO2 produced per million BTU of fuel burned.
SE = Scrubber Efficiency in %.
PSI will perform periodic tests to maintain the
accuracy and validity of such emission rate
information. Because some generating sources may
not be subject to the Clean Air Act during Phase I
or Phase II thereunder, there will be no emission
allowance charges included for the utilization of
such an energy source while it is not subject to
such requirements. One (1) emission allowance
shall be assigned to each ton of SO2 emitted to
serve the transaction. Fractions of emission
allowance tons will be rounded up to the next whole
number when the fraction is equal to or greater
than .5 and rounded down when the fraction is less
than .5.
(3) The purchasing Party of energy shall have the
option of purchasing or providing emission
allowances for each transaction. The purchasing
Party shall notify PSI of its election to purchase
or provide emission allowances prior to the start
of the transaction. The running quantity of
emission allowances charged or furnished will be
shown on the monthly invoices to the purchasing
Party.
(4) When the purchasing Party of energy elects to
purchase the emission allowances from PSI, then the
quantity of emission allowances used will be
included as part of the charges on the monthly
invoices to the purchasing Party.
(5) By January 15th of the year following the calendar
year in which the transaction occurred, the
purchasing Party of energy shall transfer the
appropriate emission allowances to PSI for the
emission allowances used when the allowances are
provided in kind.
(6) PSI has adopted the same incremental cost
calculation to value emission allowances for
dispatch criteria as for billing energy
transactions.
ARTICLE 3
SERVICE CONDITIONS
3.01. Control of System Disturbance. Each Party
shall maintain and operate its system so as to minimize, in
accordance with sound operating practice, the likelihood of
disturbance originating in either Party*s system which might
cause impairment to the service of the system of the other
Party or of any system interconnected with the system of the
other Party.
3.02. Control of Kilovar Exchange. It is the intent
that neither Party shall be obligated to deliver kilovars for
the benefit of the other Party; also that neither Party shall
be obligated to receive kilovars when to do so may introduce
objectionable operating conditions on its system. The
Operating Committee shall be responsible for the
establishment of operating procedures and schedules in
respect of carrying kilovar loads by one Party*s system for
the other Party*s system in order to secure adequate service
and economical use of facilities of both Parties* systems and
in respect of proper charges, if any, for the use of
facilities carrying kilovar loads. In discharging such
duties, the Operating Committee shall recognize that in the
transmission and delivery of power and energy hereunder the
carrying of kilovar loads by either Party, in harmony with
sound engineering principles of transmission operation with
their systems interconnected, is subject to numerous
variables contingent upon loading and operating conditions
existing simultaneously on the systems of both Parties. The
operating procedures and schedules so established by the
Operating Committee shall be in accord with such principles
and shall require each Party to carry kilovar loads at such
times and in such amounts as will be equitable to both
Parties.
3.03. Control of Unscheduled Power Deliveries. The
Parties shall exercise due diligence and foresight in
carrying out all matters related to the providing and
operating of their respective electric power resources so as
to minimize to the extent practicable deviations between
actual and scheduled deliveries of electric power and energy
between their systems. The Parties shall provide and install
on their respective systems such communication and
telemetering facilities as are essential to so minimize such
deviations and, in developing and executing operating
procedures that will enable the Parties to avoid to the
extent practicable deviation from scheduled deliveries, shall
fully cooperate with each other and with third parties whose
systems are either directly or indirectly interconnected with
the systems of the Parties and who of necessity, together
with the Parties, must unify their efforts cooperatively to
achieve effective and efficient interconnected operation.
The Parties recognize, however, that, despite their best
efforts to prevent the same, unscheduled deliveries of
electric energy from one Party to the other may occur. In
such event, electric energy delivered hereunder shall be
settled for by the return of equivalent energy. Equivalent
energy shall be returned at times when the load conditions of
the Party receiving it are equivalent to the load conditions
of such Party at the time the energy for which it is returned
was delivered or, if such Party elects to have equivalent
energy returned under different conditions, it shall be
returned in such amounts, to be agreed upon by the Operating
Committee, as will compensate for the difference in
conditions.
ARTICLE 4
DELIVERY POINTS, MEETING POINTS,
AND METERING
4.01. Delivery Points. All electric energy
delivered under the 1992 Agreement shall be of the character
commonly known as three-phase sixty Hertz energy, and shall
be delivered at the Interconnection Points specified under
Section 1.01 hereof, at a nominal voltage of 138,000 volts at
the Five Points and Centerton Interconnection Points, at the
138KV Petersburg Interconnection Point, and at the Carmel Tap
Point; and at a nominal voltage of 345,000 volts at the
Whitestown and Gwynneville Interconnection Points, and at the
345KV Petersburg Interconnection Point; and at such other
points and voltages as hereafter may be agreed upon by the
parties pursuant to Section 1.02 hereof.
4.02. Billing Based on Scheduled Transaction. As
IPL and PSI systems are interconnected with other systems
forming a network, it is recognized that, because of the
physical and electrical characteristics of the facilities
involved, a part or all of the energy being transferred from
one Party to the other may flow through such other systems
rather than through the point or points of connection between
the systems of the Parties. A part or all of the power being
transferred between other systems in the network may flow
through the point or points of connection between the systems
of the Parties, and as a result be included in the demand and
energy meter readings at the point or points of
interconnection. Therefore, all billings shall be based on
scheduled transactions or upon methods determined by the
Operating Committee which may result from development of
arrangements with other interconnected systems and which
provide a basis for accounting for the power and energy
transfers actually contracted for between the Parties.
4.03. Metering Points. Electric power and energy
supplied and delivered under the 1992 Agreement shall be
measured by suitable metering equipment which shall be
provided, owned and maintained by PSI or ILP as designated
below at the following metering points:
(i) 138,000 volt metering equipment installed by PSI at
the Five Points Substation; 138,000 volt metering
equipment installed by PSI at the Centerton
Substation; 138,000 and 345,000 volt metering
equipment installed by IPL at the Petersburg
Station; 345,000 volt metering equipment installed
by IPL at its Sunnyside Substation and at PSI*s
Gwynneville and Whitestown Substations; and 12.47kV
metering equipment installed by PSI at its Carmel
Southeast Substation, and
(ii) At such other locations as hereafter may be agreed
upon by the Parties pursuant to Section 1.02
hereof.
4.04. Metering Equipment. Suitable metering
equipment at the metering points as described in Section 4.03
above shall include electric meters, potential and current
transformers, and such other appurtenances as shall be
necessary to give for each direction of flow the following
quantities: (i) an automatic record of the kilowatt-hours
for each clock-hour, and (ii) a continuous integration record
of the kilowatt-hours.
4.05. Measurement of Electric Energy. Measurements
of electric energy for the purpose of effecting settlements
under the 1992 Agreement shall be made by standard types of
electric meters installed and maintained (unless otherwise
provided for in the Agreement) by the owner at the metering
points described in Section 4.03 above. The timing devices
of all meters having such devices shall be maintained in time
synchronism as closely as practicable.
The meters shall be sealed and the seals shall be broken
only upon occasions when the meters are to be tested or
adjusted. for the purpose of checking the records of the
metering equipment installed by one of the Parties as
hereinabove provided, the other Party shall have the right to
install check metering equipment at the aforesaid metering
points. Metering equipment so installed by one Party on the
premises of the other Party, unless otherwise provided for in
the 1992 Agreement, shall be owned and maintained by the
Party installing such equipment. Upon termination of the
1992 Agreement, the Party owning such metering equipment
shall remove it from the premises of the other Party.
Authorized representatives of both Parties shall have access
at all reasonable hours to the premises where the meters are
located and to the records made by the meters.
4.06. Testing and Access to Meters and Records. The
aforesaid metering equipment shall be tested by the owner at
suitable intervals and its accuracy of registration
maintained in accordance with good practice. On request of
either Party, a special test may be made at the expense of
the Party requesting such special test. Representatives of
both Parties shall be afforded the opportunity to be present
at all routine or special tests and upon occasions when any
readings, for purposes of settlements hereunder, are taken
from meters not bearing an automatic record.
4.07. Adjustments Due to Inaccuracies. If at any
test of metering equipment an inaccuracy shall be disclosed
exceeding two percent, the account between the Parties for
service theretofore delivered shall be adjusted to correct
for the inaccuracy disclosed over the shorter of the
following two periods: (i) for the thirty (30) day period
immediately preceding the day of the test, or (ii) for the
period that such inaccuracy may be determined to have
existed. Should the metering equipment described in Section
4.04 above at any time fail to register, the electric power
and energy delivered shall be determined from the check
meters, if installed, or otherwise shall be determined from
the best available data.
ARTICLE 5
RECORDS AND STATEMENTS
5.01. Records. In addition to records of the
metering provided for in Article 4 hereof, the Parties shall
keep in duplicate such other records as may be needed to
afford a clear history of the various deliveries of electric
energy made by one Party to the other and of the clock-hour
integrated demands in kilowatt-hours delivered by one Party
to the other. In maintaining such records, the Parties shall
effect such segregations and allocations of demands and
electric energy delivered into classes representing the
various services and conditions as may be needed in
connection with settlements under the 1992 Agreement. The
originals of all such records shall be retained by the Party
keeping the records and the duplicates shall be delivered
monthly to the other Party, except that the Parties may agree
upon a different time interval for such delivery.
5.02. Statements. As promptly as practicable after
the end of each calendar month, the Parties shall prepare a
statement setting forth the electric power and energy
transactions between the Parties during such month in such
detail and with such segregations as may be needed for
operating records or for settlements under the provisions of
the 1992 Agreement.
ARTICLE 6
BILLINGS AND PAYMENTS
6.01. Billing Period. Unless otherwise agreed upon
by the Parties, the calendar month shall be the standard
billing period for all settlements under the 1992 Agreement.
6.02. Billing Scheduled Transactions. All billing
shall be based on scheduled transactions unless otherwise
determined as provided in Section 4.02 hereof.
6.03. Billing Payments. All bills for amounts owed
by one Party to the other Party shall be due on the first
business day following the twentieth (20th) day after the end
of the calendar month or period service was rendered, or on
the fifteenth (15th) business day following receipt of a
bill, whichever is later. Payments shall be made by
electronic transfer or by such other mutually agreeable
method as shall cause such payment to be available for the
account of the payee on or before the due date. Interest on
unpaid amounts, both principal and interest, shall accrue
daily at the then current prime interest rate per annum of
The Chase Manhattan Bank, N.A., New York, New York, plus two
percent (2%) per annum, or the maximum rate permitted by law,
whichever is less, from the date due until the date upon
which payment is made.
6.04. Estimated Billing Factors. In order that
bills may be rendered promptly after the end of the each
month, it may be necessary, from time to time, to estimate
certain factors involved in calculating the monthly billing.
Adjustments for errors in such estimates shall be included in
the bill for the month following the time when information
becomes available to make such corrections or adjustments in
the billing for the preceding month or months.
6.05. Billing Disputes. If a Party disputes the
correctness of a bill, such Party will, nevertheless, pay the
undisputed portion of such bill, plus a minimum of one-half
(1/2) of the disputed amount, and shall submit to the other
Party a written statement detailing the items disputed. If
the Parties are unable to agree upon the disputed items, such
items shall be submitted to the Operating Committee for
further action consistent with the 1992 Agreement.
ARTICLE 7
OPERATING COMMITTEE
7.01. Operating Committee Organization and Duties.
To coordinate the operation of their respective generation,
transmission, and substation facilities in order that the
benefits of the 1992 Agreement may be realized by the Parties
to the fullest practicable extent, the Parties shall
establish a committee of authorized representatives to be
known as the Operating Committee. Each of the Parties shall
designate in writing delivered to the other Party, the person
who is to act as its authorized representative (the "OC
Representative") on said committee (and the person or persons
who may serve as Alternate whenever the OC Representative is
unable to act). The OC Representative and Alternate or
Alternates shall each be persons familiar with the
generation, transmission, and substation facilitates of the
system of the Party he represents, and each shall be fully
authorized (i) to cooperate with the other OC Representative
(or Alternates) and (ii) as the need arises and subject to
the declared intentions of the Parties as herein set forth
and to the terms hereof and the terms of any other agreements
then in effect between the Parties, to determine and agree
from time to time upon the following:
(i) All matters pertaining to the coordination of
maintenance of the generation and transmission
facilities of the Parties.
(ii) All matters pertaining to the control of time,
frequency, energy flow, kilovar exchange, power
factor, voltage, and other similar matters bearing
upon the satisfactory synchronous operation of the
systems of the Parties.
(iii) Such other matters not specifically provided
for herein upon which cooperation, coordination and
agreement as to quantity, time, method, terms and
conditions are necessary, in order that the
operation of the respective systems of the Parties
may be coordinated to the end that the potential
benefits anticipated by the Parties will be
realized to the fullest extent practicable.
7.02. Operating Committee Access. For the purpose
of inspection and reading of meters, checking of records, and
all other pertinent matters, the OC Representative and their
Alternates shall have the right of entry at any reasonable
time to all property of the Parties used in connection with
the performance of the 1992 Agreement.
7.03. Unanimous Action. All actions taken by said
Operating Committee must be by unanimous vote or consent of
all OC Representatives (including Alternates acting during OC
Representatives* absence).
7.04. Expenses. The expenses for establishing and
maintaining the Operating Committee shall be the
responsibility of each individual Party as regards to its
respective personnel. Any expenses jointly incurred by said
Operating Committee in carrying out its duties, other than
for the Parties* personnel, shall be shared equally by the
Parties.
7.05. Authority to Amend or Supplement. The
Operating Committee may recommend changes to the 1992
Agreement, but said Operating Committee shall not have
authority to amend or supplement the 1992 Agreement.
ARTICLE 8
CONTINUITY AND SUSPENSION OF SERVICE
RELATIVE RESPONSIBILITIES AND
LIABILITY LIMITS
8.01. Continuity and Suspension of Service. Each
Party shall exercise reasonable care and foresight to
maintain continuity of service as provided in the 1992
Agreement. In no event shall one Party be liable to the
other Party or its customers for loss or damage arising from
failure to provide or for the interruption or suspension of
any service provided for herein. Each Party reserves the
right to suspend service without liability at such times and
for such periods and in such manner as it deems advisable,
including, without limitation, suspensions for the purpose of
making necessary adjustments to, changes in, or repairs on,
its facilities and to suspend service in cases where, in its
sole opinion, the continuance of service to the other Party
would endanger persons or property. Both Parties shall use
their best efforts to provide each other with reasonable
notice in the event of suspension of service.
8.02. Relative Responsibilities. Each Party assumes
all responsibility for receipt and delivery of electricity on
its system to and from the Points of Interconnection
specified in Section 1.01 hereof or agreed upon pursuant to
Section 1.02 hereof. Neither Party assumes any
responsibility with respect to the construction,
installation, maintenance or operation of the system of the
other Party or of the systems of third parties, in whole or
in part. In no event shall one Party be liable to the other
Party for damage or injury to any person or property,
whatsoever, arising, accruing or resulting from, in any
manner, the receiving, transmission, control, use,
application or distribution of said electric power and
energy. Each Party shall use reasonable diligence to
maintain its facilities in proper and serviceable condition,
and shall take reasonable steps and precautions for
maintaining the services agreed to be provided and received
under the 1992 Agreement. Each Party shall be responsible
for its own compliance with all applicable environmental
regulations and shall bear all costs arising from its failure
to comply with such environmental regulations.
8.03. Limitation of Liability. In no event shall
one Party be liable to the other Party for any indirect,
special, incidental or consequential damages with respect to
any claim arising out of the 1992 Agreement.
ARTICLE 9
TERM OF AGREEMENT
9.01. The term of the 1992 Agreement and of the
annexed Service Schedules shall begin as of May 1, 1992 and
(except for Service Schedule D) shall continue through April
30, 2022 (the "Initial Term"); thereafter, the Agreement and
Service Schedules (except Service Schedule D) shall continue
for successive terms of three (3) years each unless and until
terminated by either Party by giving notice to the other
Party of its intention to terminate the 1992 Agreement at
least two (2) years prior to the end of the Initial Term or
any successive term; provided, that the 1992 Agreement shall
not be deemed to have terminated until all prior commitments
for sales or purchases of power and energy hereunder shall
have been fulfilled and all payments shall have been made.
The term of Service Schedule D shall be as provided therein.
Any notice of termination hereunder shall be given to the
President or Chief Operations Officer of a Party with a copy
to the OC Representative of such Party.
ARTICLE 10
WAIVERS
10.01. Any waiver at any time by either party of
their rights with respect to a default under the 1992
Agreement, or with respect to any other matter arising in
connection with the 1992 Agreement shall not be deemed a
waiver with respect to any subsequent default or matter. Any
delay, short of the statutory period of limitation, in
asserting or enforcing any right under the 1992 Agreement
shall not be deemed a waiver of such right.
ARTICLE 11
TAXES
11.01. If at any time during the term hereof there
should be levied or assessed against either Party any direct
tax by any taxing authority on the capacity or energy (or
both) generated, purchased, sold, transmitted, interchanged
or exchanged by it, which tax is in addition to or different
from the forms of such direct tax as are being levied or
assessed as of the date hereof and such direct tax results in
increasing the cost of either or both the Parties in carrying
out the provisions of the 1992 Agreement, then such increase
shall be reflected in the charges for capacity or energy (or
both) furnished by one Party to the other hereunder as is
necessary in order to make adequate and equitable allowances
for such tax.
ARTICLE 12
NOTICES
12.01. Notices Relating to Provisions of the 1992
Agreement. Except as herein otherwise provided, any notice
which may be given to or made upon either Party by the other
Party, under any of the provisions of the 1992 Agreement,
shall be in writing unless it is otherwise specifically
provided herein, and shall be treated as duly delivered when
the same is either (a) personally delivered to the President
or Chief Operations Officer of the other Party or (b)
deposited in the United States mail, postage prepaid and
properly addressed to the President or Chief Operations
Officer of the other Party; provided, however, that either
Party may alter its recipient for notice hereunder by written
notice to the other Party in accordance with the provisions
of this Section 12.01.
12.02. Notices of An Operating Nature. Any notice,
request or demand pertaining to matters of an operating
nature may be served in person or by United States mail,
messenger, telephone, or telegraph, facsimile transmission or
orally, as circumstances dictate, from the OC Representative
of one Party to the OC Representative of the other Party;
provided, that should the same not be written, confirmation
thereof shall be made in writing as soon as practicable
thereafter, upon request of the Party being served.
ARTICLE 13
REGULATORY AUTHORITIES
13.01. Regulatory Authority. The 1992 Agreement is
made subject to the authority of the Federal Energy
Regulatory Commission or any other governmental regulatory
agency having jurisdiction in the premises and, if any of the
terms and conditions hereof are altered or made impossible of
performance by order, rule, or regulation of any such
regulatory agency, and the Parties hereto are unable to agree
upon a modification of such terms and conditions that will
satisfy such order, rule, or regulation, then neither Party
shall be liable to the other for failure thereafter to comply
with such terms and conditions; provided, that if either
Party deems that the failure of such performance results in a
substantial breach of the 1992 Agreement, then the 1992
Agreement may be terminated forthwith upon thirty (30) days*
advance written notice.
13.02. Amendments. The 1992 Agreement and the
annexed Service Schedules may be amended by mutual agreement
of the Parties, which amendment shall be in writing and shall
become effective in accordance with Section 13.01 hereof.
The rates and charges set forth in the annexed Service
Schedules are subject to amendment and change, and each party
reserves the right from time to time to seek unilaterally,
from any regulatory agency having jurisdiction, amendments or
changes in its rates and charges set forth therein in
accordance with the applicable law. Nothing contained in the
1992 Agreement, any annexed Service Schedule or any
supplements thereto shall be construed as affecting in any
way the right of either Party unilaterally to make
application to the Federal Energy Regulatory Commission (or
any successor regulatory agency having jurisdiction) for a
change in rates under Section 205 of the Federal Power Act
and pursuant to the Commission*s Rules and Regulation
promulgated thereunder (or under comparable statutes and
regulations of a successor regulatory agency having
jurisdiction).
ARTICLE 14
MISCELLANEOUS
14.01. No Partnerships; Tax Matters. Notwithstanding
any provision of the 1992 Agreement to the contrary, the
Parties do not intend to create hereby any joint venture,
partnership, association taxable as a corporation, or other
entity for the conduct of any business for profit, and any
construction of the 1992 Agreement to the contrary which has
an adverse tax effect on either Party shall render the 1992
Agreement null and void from its inception.
14.02. Computation of Time. In computing any period
of time prescribed or allowed by the 1992 Agreement, the day
of the act, event, or default from which the designated
period of time begins to run shall be excluded but the last
day of such period shall be included, unless it is a
Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next business day which is not
a Saturday, Sunday, or legal holiday.
14.03. Section Headings Not to Affect Meaning. The
descriptive headings of the Articles, Sections, Subsections
and paragraphs of the 1992 Agreement have been inserted for
convenience only and shall not modify or restrict any of the
terms and provisions thereof.
ARTICLE 15
ASSIGNMENT
15.01. The 1992 Agreement shall inure to the benefit
of, and be binding upon, the respective successors and
assigns of the Parties, but the assignment thereof by a Party
shall not relieve such Party, without the written consent of
the other Party, of any obligation to supply, or to take and
pay for, as the case may be, the services hereunder.
ARTICLE 16
ENTIRE AGREEMENT CONTAINED HEREIN
16.01. The 1992 Agreement contains the entire
agreement between the Parties in respect of the subject
matter hereof, and there are no other understanding or
agreements between the Parties in respect thereof; provided,
however, that nothing contained in the 1992 Agreement shall
be deemed to affect in any manner whatsoever any rights or
claims either Party may have against the other Party pursuant
to any other agreement in effect before the effective date of
the 1992 Agreement with respect to any matter, including any
right or claim to payments after the effective date of the
1992 Agreement pursuant to other preexisting agreements.
ARTICLE 17
1962 AGREEMENT SUPERSEDED
17.01. The 1992 Agreement constitutes an amendment to
and complete restatement of the 1962 Agreement and, as such,
supersedes the 1962 Agreement from and after the date the
1992 Agreement becomes effective.
ARTICLE 18
AGENCY OF CINERGY SERVICES, INC.
18.01. CINergy Services joins in the execution of
this Agreement for the sole purpose of serving and acting as
agent for PSI.
IN WITNESS WHEREOF the Parties have caused the 1992 Agreement
to be executed by their respectable duly authorized officers
and their respective corporate seal to be hereunder affixed
as of the date first above mentioned.
INDIANAPOLIS POWER & LIGHT
(IPL)
By: /s/ John R. Brehm
John R. Brehm
Senior Vice President
Finance and
Information Services
Attest:
By: /s/ Bryan G. Tabler
Bryan G. Tabler
Senior Vice President
Secretary and
General Counsel
CINERGY SERVICES, INC.
(CINergy Services)
By: /s/ Terry E. Bruck
Terry E. Bruck
Group Vice President
PSI ENERGY, INC.
(PSI)
By: /s/ John M. Mutz
John M. Mutz
President
EXHIBIT I
(First Revision)
SERVICE SCHEDULE A
EMERGENCY SERVICE
SECTION 1 - DURATION
1.1 This Service Schedule A, being a part of and under the
Interconnection Agreement (referred to herein as the "1992
Agreement"), dated as of May 1, 1992, among Indianapolis
Power & Light Company (hereinafter called "IPL") and PSI
Energy, Inc., formerly named Public Service Company of
Indiana, Inc. (hereinafter called "PSI") and CINergy
Services, Inc. (hereinafter called "CINergy Services"), shall
become effective as of the effective date of the Third
Amendment, dated June 30, 1995, to the 1992 Agreement and
shall continue in effect throughout the duration of the 1992
Agreement. IPL, PSI and CINergy Services are sometimes
hereinafter referred to individually as "Party" or
collectively as "Parties" where appropriate.
SECTION 2 - SERVICES TO BE RENDERED
2.1 Conditional Service. Subject to the provisions of
Subsection 2.2 of this Section 2, in the event of a breakdown
or other emergency in or on the system of any Party involving
either sources of power or transmission facilities, or both,
impairing or jeopardizing the ability of the Party suffering
the emergency to meet the loads of its system, another Party
shall deliver to such Party electric energy that it is
requested to deliver; provided, however, that a Party shall
not be obligated to deliver such energy which, in its sole
judgment, it cannot deliver without interposing a hazard to
or economic burden upon its operations or without impairing
or jeopardizing the other load requirements of its system and
provided further, that a Party shall be obligated to deliver
electric energy to another Party for a period in excess of
forty-eight (48) consecutive hours during any single
emergency.
2.2 Non-performance. The Parties recognize that the
delivery of electric energy as provided in Subsection 2.1 of
this Section 2 is subject to two conditions which may
preclude the delivery of such energy as so provided: (a) the
Party requested to deliver electric energy may be suffering
an emergency in or on its own system as described in said
Subsection 2.1, or (b) the system of a Party may be
delivering electric energy, under a mutual emergency
interchange agreement, to the system of another
interconnected company which is suffering any emergency in or
on its system. Under conditions as cited under (a) above, a
Party shall not be considered to be in default hereunder if
it is unable to comply with the provisions of said Subsection
2.1. Under conditions as cited under (b) above, a Party
shall not be considered to be in default hereunder if it is
unable to comply with the provisions of said Subsection 2.1;
provided, however, that such Party shall make every effort
consistent with the terms of its contract with said other
interconnected company to make the electric energy as
provided in Subsection 2.1 available to another Party hereto
as soon as possible.
2.3 Reserve Generating Capacity Review. If at any time the
record over a reasonable prior period shows clearly that one
of the Parties has failed to deliver energy in accordance
with and subject to the provisions of Subsection 2.1 and
Subsection 2.2 of this Section 2, a Party, by written notice
given to another Party, may call for a joint study by the
Parties of the reserve generating capacity in and provided
for their respective systems and of their respective system
transmission facilities affecting the supply and delivery of
power and energy under the 1992 Agreement. It shall be the
purpose of such study to determine the adequacy or inadequacy
of reserve generating capacity and transmission facilities
being provided to meet the requirements of the Parties
respective systems, reflecting obligations under the 1992
Agreement, and, if inadequate, the extent of the burden that
a Party may be placing upon another Party. If it should be
found that a Party is placing an unreasonable burden upon
another Party, the Party causing such burden shall take such
measures as are necessary to remove the burden from another
Party, or the Parties shall enter into such arrangements as
shall provide for equitable compensation to the Party being
burdened.
SECTION 3 - COMPENSATION
3.1 When IPL is the Supplying Party:
3.11 Emergency Energy delivered that is generated by
IPL shall be settled for, at the option of IPL, either by the
return of equivalent energy at a mutually acceptable time
upon request of IPL or by payment of the greater of (a) 110%
of the Out-Of-Pocket Cost (such cost being as of the delivery
point or points, as referred to in Section 4.01 of the 1992
Agreement, taking into account electrical losses incurred
from the source or sources of such energy to the delivery
point or points) of supplying such energy, or (b) $0.10 per
kilowatt-hour.
3.12 Emergency Energy delivered that is purchased by
IPL from a third party shall be settled for by payment of an
energy charge of 100% of the Out-Of-Pocket Cost paid therefor
by IPL, plus an amount to be agreed upon by the Parties at
the time of the transactions of up to 4.6 mills per kilowatt-
hour (consisting of up to 3.6 mills per kilowatt-hour for
bulk transmission charge plus 1 mill per kilowatt-hour for
difficult to quantify energy-related costs), plus any
transmission losses resulting on IPL's system on account of
the transaction, and plus any taxes incurred by IPL on
account of the transaction.
3.2 When PSI is the Supplying Party:
3.21 Emergency Energy delivered that is generated by
PSI shall be settled for by payment of the greater of
(a) 110% of the Out-Of-Pocket Cost (such cost being as
of the interconnection point or points, as referred to
in Section 4.01 or the 1992 Agreement, taking into
account electrical losses incurred from the source or
sources of such energy to the interconnection point or
points) of supplying such energy. Non-firm transmission
service per the provisions of the CINergy Services,
Inc., FERC Electric Tariff, Original Volume No. 3, Non-
Firm Point-to-Point Transmission Service Standard Tariff
- NFT (or any successor transmission tariff of similar
service) must be obtained, or (b) $100 per megawatt-
hour.
3.22 Emergency Energy delivered that is purchased by
PSI from a third party shall be settled for by payment
of the greater of (a) of an energy charge of 100% of the
Out-Of-Pocket Cost paid therefor by PSI plus $1.00 per
megawatt-hour (for difficult to quantify energy-related
costs), plus any transmission losses resulting on the
system of the CINergy Operating Companies on account of
the transaction. Non-firm transmission service per the
provisions of the CINergy Services, Inc., FERC Electric
Tariff, Original Volume No. 3, Non-Firm Point-to-Point
Transmission Service Standard Tariff - NFT (or any
successor transmission tariff of similar service) must
be obtained, and plus any regulatory commission charges
and taxes incurred by PSI on account of the transaction,
or (b) $100 per megawatt-hour.
3.3 If the option of returning electric energy under
Subsection 3.11 is exercised, then it shall be returned at
times when the load conditions of the Party receiving it are
equivalent to the load conditions of such Party at the time
the energy for which it is returned was delivered or, if such
Party elects to have equivalent energy returned under
different conditions, it shall be returned in such amounts,
to be agreed upon by the Operating Committee under the
Agreement, as will compensate the Party for the difference in
conditions.
EXHIBIT II
(First Revision)
SERVICE SCHEDULE B
INTERCHANGE ENERGY
SECTION 1 - DURATION
1.1 This Service Schedule B, being a part of and under the
Interconnection Agreement (referred to herein as the "1992
Agreement"), dated as of May 1, 1992, among Indianapolis
Power & Light Company (hereinafter called "IPL") and PSI
Energy, Inc., formerly named Public Service Company of
Indiana, Inc. (hereinafter called "PSI") and CINergy
Services, Inc. (hereinafter called "CINergy Services"), shall
become effective as of the effective date of the Third
Amendment, dated June 30, 1995 to the 1992 Agreement and
shall continue in effect throughout the duration of the 1992
Agreement. IPL, PSI and CINergy Services are sometimes
hereinafter referred to individually as "Party" or
collectively as "Parties" where appropriate.
SECTION 2 - SERVICES TO BE RENDERED
Economy Energy
2.1 It is recognized that from time to time that any of the
Parties may have electric energy (herein called "Economy
Energy") available from surplus capacity either on its own
system or from sources outside its own system, or both, and
that Economy Energy could be supplied to another Party at a
cost that would result in operating savings to such another
Party. Such operating savings would result from the
displacement of electric energy that otherwise would be
supplied from capacity either on such other Party's system or
from sources outside its own system, or both. To promote the
economy of electric power supply and to achieve efficient
utilization of production capacity, any Party, whenever it in
its sole judgment determines Economy Energy is available,
may, but shall not be obligated to, offer Economy Energy to
another Party. Promptly upon receipt of any such offer said
Party shall notify the offering Party of the extent to which
it desires to use such Economy Energy, and schedules
providing the periods and extent of use shall be mutually
agreed upon by the Parties. Such energy is non-firm and may
be withdrawn by the supplying Party with a ten (10) minute
notification. A transaction made by PSI and CINergy Services
under this Service Schedule B shall not extend beyond twelve
(12) months.
Non-Displacement Energy
2.2 It is further recognized that from time to time
occasions will arise when the effecting of transactions, as
provided in Subsection 2.1 of this Section 2, will be
impracticable, but at the same time one of the Parties may
have electric energy (herein called "Non-Displacement
Energy") which it is willing to make available from surplus
capacity either on its own system or from sources outside its
own system, or both, that can be utilized advantageously for
short intervals by another Party. It shall be the
responsibility of the Party desiring the receipt of Non-
Displacement Energy to initiate the receipt and delivery of
such energy. Any Party desiring such receipt of energy shall
inform another Party of the extent to which it desires to use
Non-Displacement Energy, and whenever in its sole judgment
such another Party determines that it has Non-Displacement
Energy available, schedules providing the periods and extent
of use shall be mutually agreed upon by the Parties. Any
Party shall not be obligated to make any Non-Displacement
Energy available to another Party.
2.3 PSI may reduce or discontinue the supply of Hourly Non-
Displacement Energy at any time. To the extent possible,
however, PSI shall advise IPL of its intention to reduce
materially or discontinue the supply of Hourly Non-
Displacement Energy.
2.4 PSI shall supply Daily and Weekly Non-Displacement
Energy for three (3) hours after they have notified IPL of
its intention to discontinue such supply of energy; however,
PSI shall be under no obligation to continue the supply of
said energy for more than three (3) hours after said
notification.
2.5 A transaction made by PSI under Subsection 2.2 above
shall not extend beyond twelve (12) months.
SECTION 3 - COMPENSATION
Economy Energy
3.1 The charge for Economy Energy purchased by a Party from
another Party shall be based on the principle that the Party
purchasing it shall pay the Out-Of-Pocket Cost (including all
operating, maintenance, tax, regulatory commission charges,
transmission losses and other expenses incurred that would
not have been incurred if the energy had not been supplied)
being at the interconnection points (as defined in Article 4
of the 1992 Agreement), of the Party supplying such energy
and that the resulting savings to the receiving Party shall
be equally shared by the supplying and receiving Parties.
Prior to any transaction involving the delivery and receipt
of Economy Energy, authorized representatives of the Parties
shall determine and agree upon the compensation applicable to
such transaction. Compensation so agreed upon shall not be
subject to later review or adjustment. PSI shall dedicate an
amount at the time of the transactions for non-firm
transmission service per the provisions of the CINergy
Services, Inc., FERC Electric Tariff, Original Volume No. 3,
Non-Firm Point-to-Point Transmission Service Standard Tariff
- - NFT (or any successor transmission tariff of similar
service) from its portion of the resulting savings.
3.2 When Economy Energy is obtained from or delivered to
other systems interconnected with the Parties, but not
signatories to the 1992 Agreement, payments shall be based on
the Out-Of-Pocket Cost of the supplying Party or system
providing the energy and an allocation of the gross savings
which are defined as the difference between (1) what such Out-
Of-Pocket Costs of the receiving Party or system would have
been to generate such energy, and (2) such Out-Of-Pocket
Costs of the supplying Party or system providing the energy.
Such allocation shall be made as provided in Subsections 3.21
and 3.22 hereinbelow:
3.21 The transmitting Party shall be paid (a) its costs
of purchasing the energy supplied, plus (b) its
costs of additional transmission losses plus (c)
the following:
(1) When IPL is such transmitting Party: Fifteen
percent (15%) of the gross savings remaining
after deducting all such payments for
transmission losses.
(2) When PSI is the transmitting Party, they shall
receive the greater of (a) 15% (such charge
pertains to the reservation of transmission)
of the gross savings remaining after deducting
all such payments for transmission losses or
(b) the sum of a demand charge rate per
megawatt reserved per hour at the time such
Economy Energy is reserved for non-firm
transmission service per the provisions of the
CINergy Services, Inc., FERC Electric Tariff,
Original Volume No. 3, Non-Firm Point-to-Point
Transmission Service Standard Tariff - NFT (or
any successor transmission tariff of similar
service), plus $1.00 per megawatt-hour (for
difficult to quantify energy-related costs),
plus any transmission losses resulting on the
system of the CINergy Operating Companies on
account of the transaction and plus any
regulatory commission charges and taxes
incurred by PSI on account of the transaction.
3.22 The supplying Party or system shall be paid its Out-
Of-Pocket Cost of providing the energy, plus one-
half of the gross savings remaining after deducting
all (b) and (c) payments made under Subsection
3.21. The receiving Party or system shall be
entitled to the other one-half of the gross savings
remaining after deducting all (b) and (c) payments
made under Subsection 3.21.
Non-Displacement Energy
3.3 Non-Displacement Energy delivered hereunder shall be
settled for either by the return of equivalent energy (only
in the case where IPL is the supplying Party) or, at the
option of the Party that supplied such energy, by payment of
an energy charge of up to 110% of the Out-Of-Pocket Cost
(such cost being as of the delivery point or points, as
provided in Section 4.01 of Article 4 of the 1992 Agreement,
taking into account electrical losses incurred from the
source or sources of such energy to said delivery point or
points) to the supplying Party generating such energy plus
(the applicable demand charge rates per this Subsection are
limited by Subsections 3.7 and 3.8):
3.31 When IPL is the supplying Party:
3.31.1 IPL, at its option, may impose a demand
charge of up to 48.6 mills per kilowatt reserved
per hour, but the total demand charge in any one
day shall be no more than the product of $0.778
times the highest amount in kilowatts reserved in
any hour during the day. Or,
3.31.2 IPL, at its option, may choose to supply
such energy without imposing a demand charge in
which case no additional payment is included.
However, if this option is chosen, the cost of such
energy will be calculated as 110% of the actual Out-
Of-Pocket Cost (such cost being as of the delivery
point or points, as provided in Section 4.01 of
Article 4 of the 1992 Agreement, taking into
account electrical losses incurred from the source
or sources of such energy to said delivery point or
points) to the supplying Party generating such
energy.
3.32 When PSI is the supplying Party by payment of the
following:
(1) For energy generated, the agreed upon demand charge
rate of up to $50 per megawatt-hour (such charge
pertains to the production component only), the
total demand charge in any one day shall be no more
than the product of $797 and the greatest amount of
megawatts reserved in any hour during said day and
the total charge in any one week shall be no more
than the product of $4,781 and the greatest number
of megawatts reserved in any hour during said week.
Non-firm transmission service per the provisions of
the CINergy Services, Inc., FERC Electric Tariff,
Original Volume No. 3, Non-Firm Point-to-Point
Transmission Service Standard Tariff - NFT (or any
successor transmission tariff of similar service)
must be obtained;
(2) For daily energy which is purchased by PSI from a
third party for economic reasons to meet system
needs but in subsequent system resources accounting
calculations is determined to have been used to
supply a Daily Non-Displacement Energy transaction
and for which PSI stands by to supply from its own
resources: (a) the amount paid by PSI to the third
party for such energy, plus (b) the cost of
transmission losses, regulatory commission charges
and taxes incurred which would not otherwise have
been incurred, plus (c) $1.00 per megawatt-hour for
difficult-to-quantify energy related costs, and,
plus (d) up to $50 per megawatt-hour (such charge
pertains to the production component only), the
total charge in any one day shall be no more than
the product of $797 and the greatest number of
megawatts reserved in any hour during said day and
the total charge in any one week shall be no more
than the product of $4,781 and the greatest number
of megawatts reserved in any hour during said week.
Non-firm transmission service per the provisions of
the CINergy Services, Inc., FERC Electric Tariff,
Original Volume No. 3, Non-Firm Point-to-Point
Transmission Service Standard Tariff - NFT (or any
successor transmission tariff of similar service)
must be obtained.
3.33 If equivalent energy is returned to IPL, it shall
be returned at times when the load conditions of
the Party receiving it are equivalent to the load
conditions of such Party at the time the energy for
which it is returned was delivered or, if such
Party elects to have equivalent energy returned
under different conditions, it shall be returned in
such amounts, to be agreed upon by the Operating
Committee, as will compensate for the difference in
conditions.
3.4 Non-Displacement Energy delivered under Subsection 2.2
above that is purchased by the supplying Party from another
interconnected system which is not a signatory to the 1992
Agreement ("Third Party") at the request of the receiving
Party shall be settled for as follows:
3.41 When IPL is the supplying Party, by a payment of 100
percent of the amount paid to such Third Party, plus a
demand charge in an amount to be agreed upon by the
Parties at the time of the reservation of up to 3.6
mills per kilowatt reserved per hour, but the total
demand charge in any one day shall be no more than the
product of $0.058 times the highest amount in kilowatts
reserved in any hour during the day, plus 1 mill per
kilowatt-hour (for difficult to quantify energy-related
costs), plus the cost of any quantifiable transmission
losses, taxes, and other expenses incurred that would
not have been incurred if such transaction had not been
made.
3.42 When PSI is the supplying Party: by (a) non-firm
transmission service per the provisions of the CINergy
Services, Inc., FERC Electric Tariff, Original Volume
No. 3, Non-Firm Point-to-Point Transmission Service
Standard Tariff - NFT (or any successor transmission
tariff of similar service) must be obtained and (b) an
energy charge of 100% of the Out-of-Pocket Cost paid
therefor by PSI, plus $1.00 per megawatt-hour (for
difficult to quantify energy-related costs), plus any
transmission losses resulting on the system of the
CINergy Operating Companies on account of the
transaction, and plus any regulatory commission charges
and taxes incurred by PSI on account of the transaction.
3.5 Notwithstanding the rates stated in Subsection 3.3
above, when IPL is the supplying Party, if the "demand
charge" option of Section 3.31.1 is chosen, the sum of the
demand and energy charges for each specific reservation made
pursuant to Section 2.2 of this Service Schedule B which
includes a demand charge shall not:
(1) exceed the total of:
(i) The product of the number of kilowatts
reserved for such reservation times the
maximum hourly demand charge specified above
in Subsection 3.3; and
(ii) The product of the number of kilowatt-hours
sup-plied for such reservation times 110% of
the average cost per kilowatt-hour of energy
generated by IPL's Petersburg Unit No. 4 for
the last preceding month during which it was
run; or
(2) be less than 100% of the total Out-Of-Pocket Cost
of supplying the Non-Displacement Energy for such
reservation.
3.6 Notwithstanding the rates stated in Subsection 3.3
above, when PSI and CINergy Services are the supplying Party,
the sum of the demand and energy charges for each specific
reservation made pursuant to Section 2.2 of this Service
Schedule B shall not:
(1) exceed the total of:
(i) The product of the number of megawatts
reserved for such reservation times the
maximum hourly demand charge specified above
in Subsection 3.3; and plus
(ii) The product of the number of megawatt-hours
supplied for such reservation times 110% of
the average cost per megawatt-hour of energy
generated by the CINergy Operating Companies*
Zimmer Unit No. 1 and Gibson Unit No. 5 for
the preceding month; nor
(2) be less than 100% of the total Out-Of-Pocket Cost
of supplying the Non-Displacement Energy for such
reservation.
3.7 The aggregate instant total capacity of all IPL sales
under this and other Service Schedules which are a part of
this and other IPL Agreements, for which the rates charged
have been supported on the basis that total revenues will not
exceed the costs of Petersburg Unit No. 4, is limited to 515
MW.
3.8 The total power of all sales by the CINergy Operating
Companies and CINergy Services under this and other
agreements of the CINergy Operating Companies and CINergy
Services, for which the agreed upon demand charge is
determined based on Zimmer Unit No. 1 and Gibson Unit No. 5,
is limited to 925 MWs (CINergy Operating Companies* Zimmer
Unit No. 1 Net Demonstrated Capability of 612 MWs and Gibson
Unit No. 5 Net Demonstrated Capability of 313 MWs) on an
hourly basis. For sales in excess of the capacity limitation
of 925 MWs noted above, the rate shall consist of an energy
charge of up to 110% of Out-of-Pocket Cost and a demand
charge of up to $ 13 per megawatt per hour (such charge
pertains to the production component only), the total charge
in any one day shall be no more than the product of $209 and
the greatest number of megawatts reserved in any hour during
said day and the total charge in any one week shall be no
more than the product of $1,252 and the greatest number of
megawatts reserved in any hour during said week. Non-firm
transmission service per the provisions of the CINergy
Services, Inc., FERC Electric Tariff, Original Volume No. 3,
Non-Firm Point-to-Point Transmission Service Standard Tariff
- - NFT (or any successor transmission tariff of similar
service) must be obtained; but in no event shall the total
revenue (energy charge and demand charge combined) be less
than 100% of the Out-of-Pocket Costs for supplying the Non-
Displacement Energy for such reservation. Notwithstanding
all previous Subsections, when power is sold under both this
Subsection and Subsection 3.3 in any month, the total demand
charge will be the applicable weighted average demand charges
in this Subsection and Subsection 3.3. Such weighting will
be developed by adding the number of hours that power was
provided under this Subsection times the applicable demand
charge under this Subsection and the number of hours that
power was provided under Subsection 3.3 times the applicable
demand charge in Subsection 3.3, with the sum being divided
by the applicable number of hours of the transaction (month,
week, day or hours).
EXHIBIT III
(First Revision)
SERVICE SCHEDULE C
SHORT TERM POWER AND ENERGY
SECTION 1 - DURATION
1.1 This Service Schedule C, being a part of and under the
Interconnection Agreement (referred to herein as the "1992
Agreement"), dated as of May 1, 1992, among Indianapolis
Power & Light Company (hereinafter called "IPL") and PSI
Energy, Inc., formerly named Public Service Company of
Indiana, Inc. (hereinafter called "PSI") and CINergy
Services, Inc. (hereinafter called "CINergy Services"), shall
become effective as of the effective date of the Third
Amendment, dated June 30, 1995, to the 1992 Agreement and
shall continue in effect throughout the duration of the 1992
Agreement. IPL, PSI and CINergy Services are sometimes
hereinafter referred to individually as "Party" or
collectively as "Parties" where appropriate.
SECTION 2 - SERVICES TO BE RENDERED
2.1 Any Party, by giving the other Parties notice, may
reserve from the other Parties (a) electric power ("Weekly
Short Term Power") for periods of one or more weeks or (b)
electric power ("Daily Short Term Power") for periods of one
or more days whenever the Party requested to reserve the same
is willing to make such power available. Under ordinary
circumstances such reservation shall extend for not less than
a calendar week if it begins with Sunday or for the balance
of the calendar week if it begins with any day subsequent to
Sunday; however, under unusual circumstances, the Parties may
mutually agree upon a reservation of Daily or Weekly Short
Term Power for a lesser number of days. In all cases the
Party asked to supply Daily or Weekly Short Term Power shall
be the sole judge as to the amounts and periods that it has
electric power available that may be reserved by another
Party as Short Term Power. A transaction made by any Party
under this Service Schedule C shall not extend beyond twelve
(12) months.
2.11 Prior to each reservation of Weekly or Daily Short
Term Power, the number of megawatts to be reserved, the
period of the reservation, the terms of such reservation, and
the source of such power if the supplying Party is in turn
reserving such power from another interconnected system which
is not a signatory to the 1992 Agreement ("Third Party"),
shall be determined by the Parties. Such reservation shall
be confirmed in writing at the request of any Party. If
during such period the conditions arise that could not have
been reasonably foreseen at the time of the reservation and
cause the reservation to be burdensome to the supplying
Party, such Party may by oral notice to the reserving Party,
such oral notice to be later confirmed in writing if
requested by any Party, reduce the number of megawatts
reserved by such amount and for such time as it shall specify
in such notice, but kilowatts reserved hereunder that the
supplying Party is in turn reserving from a Third Party may
be reduced only to the extent they are reduced by such Third
Party.
2.12 During each period that Weekly or Daily Short Term
Power has been reserved, the Party that has agreed to
supply such power shall upon call by the reserving Party
deliver associated electric energy ("Weekly or Daily
Short Term Energy") to the reserving Party as of the
interconnection point or points, as provided in Section
4.01 of Article 4 of the 1992 Agreement at a rate during
each hour of up to and including the number of megawatts
reserved.
SECTION 3 - COMPENSATION
3.1 Weekly Short-Term Power and Energy
3.1.1 Except as otherwise provided in Subsection 3.1.3
below, when IPL is the supplying Party, PSI shall pay
all of the following which are applicable (the
applicable demand charge rate per this Subsection is
limited by Subsection 3.5):
(a) for any week that Weekly Short-Term Power and
Energy is reserved, a demand charge rate to be
agreed upon by the Parties at the time such
Weekly Short-Term Power and Energy is
reserved, at a rate of up to $3.89 per
kilowatt reserved, except, for each day (other
than Sunday) during any part of which the
amount of such Weekly Short-Term Power and
Energy is reduced by IPL, the total demand
charge shall be reduced by one-sixth (1/6) of
said agreed upon demand charge rate for each
megawatt of the reduction;
(b) for Weekly Short-Term Energy delivered that is
generated by IPL, an energy charge to be
agreed upon by the Parties at the time of the
transaction of up to 110% of the Out-Of-Pocket
Cost (such cost being as of the
interconnection point or points, as defined in
Article 4 of the 1992 Agreement, taking into
account electrical losses incurred from the
source or sources of such energy to the
interconnection point or points) of supplying
such energy;
(c) for Weekly Short-Term Energy delivered that is
purchased by IPL from a Third Party, an energy
charge of 100% of the Out-Of-Pocket Cost paid
therefor by IPL, plus one (1) mill per
kilowatt-hour of such purchased energy (for
difficult to quantify energy-related costs),
plus any transmission losses resulting on
IPL*s system on account of the transaction,
and plus any taxes incurred by IPL on account
of the transaction.
3.1.2 Except as otherwise provided in Subsection 3.1.3
below, when PSI is the supplying Party, IPL shall pay
all of the following which are applicable (the
applicable demand charge rate per this Subsection is
limited by Subsection 3.6):
(a) for any week that Weekly Short-Term Power and
Energy is reserved, a demand charge rate to be
agreed upon by the Parties at the time such
Weekly Short-Term Power and Energy is
reserved. Said demand charge rate shall be at
a rate of up to $4,781 per megawatt reserved
(such charge pertains to the production
component only), except for each day (other
than Sunday) during any part of which the
amount of such Weekly Short-Term Power and
Energy is reduced by PSI, the total demand
charge shall be reduced by one-sixth (1/6) of
said agreed upon demand charge rate (rounded
to the nearest $0.10 per megawatt) for each
megawatt of the reduction. Non-firm
transmission service per the provisions of the
CINergy Services, Inc., FERC Electric Tariff,
Original Volume No. 3, Non-Firm Point-to-Point
Transmission Service Standard Tariff - NFT (or
any successor transmission tariff of similar
service) must be obtained;
(b) for Weekly Short-Term Energy delivered that is
generated by PSI, an energy charge to be
agreed upon by the Parties at the time of the
transaction of up to 110% of the Out-Of-Pocket
Cost (such cost being as of the
interconnection point or points, as defined in
Article 4 of the 1992 Agreement, taking into
account electrical losses incurred from the
source or sources of such energy to the
interconnection point or points) of supplying
such energy;
(c) for Weekly Short-Term Energy delivered that is
purchased by PSI from a Third Party, an energy
charge of 100% of the Out-Of-Pocket Cost paid
therefor by PSI, plus $1.00 per megawatt-hour
of such purchased energy (for difficult to
quantify energy-related costs), plus any
transmission losses resulting on the system of
the CINergy Operating Companies on account of
the transaction, and plus any regulatory
commission charges and taxes incurred by PSI
on account of the transaction.
3.1.3 When Weekly Short-Term Power and Energy is
purchased by the supplying Party from a Third Party
specifically for the reserving Party, the reserving
Party shall pay the supplying Party all of the following
which are applicable:
(a) the demand charge paid therefor by the supplying
Party to the Third Party for such electric power
and energy;
(b) when IPL is the supplying Party:
(1) for any week such Weekly Short-Term Power and
Energy is reserved, a demand charge rate per
kilowatt to be agreed upon by the Parties at
the time such Weekly Short-Term Power and
Energy is reserved, at a rate of up to $0.29
per kilowatt reserved (such charge pertains to
the reservation of transmission). In the
event the amount of such Weekly Short-Term
Power and Energy is reduced by IPL, said
demand charge shall be reduced by the sum of
(i) one-sixth (1/6) of the said agreed upon
weekly rate per kilowatt of the reduction for
each day (other than Sunday) during which such
reduction is in effect, and (ii) the
reduction, if any, in the demand charge paid
by IPL to the Third Party;
(c) when PSI is the supplying Party:
(1) Non-firm transmission service per the
provisions of the CINergy Services, Inc., FERC
Electric Tariff, Original Volume No. 3, Non-
Firm Transmission Service Standard Tariff -
NFT (or any successor transmission tariff of
similar service) must be obtained. In the
event the amount of such Weekly Short-Term
Power and Energy is reduced by PSI, said
demand charge shall be reduced by the sum of
(i) one-sixth (1/6) of the said agreed upon
weekly rate per megawatt of the reduction for
each day (other than Sunday) during which such
reduction is in effect, and (ii) the
reduction, if any, in the demand charge paid
by PSI to the Third Party;
(2) for each megawatt-hour purchased by PSI from a
Third Party to supply Weekly Short-Term Energy
delivered during such period, an energy charge
of 100% of the Out-Of-Pocket Cost paid
therefor by PSI, plus $1.00 per megawatt-hour
(for difficult to quantify energy-related
costs), plus any transmission losses resulting
on the system of the CINergy Operating
Companies on account of the transaction, and
plus any regulatory commission charges and
taxes incurred by PSI on account of the
transaction.
3.2 Daily Short-Term Power and Energy
3.2.1 Except as otherwise provided in Subsection 3.2.3
below, when IPL is the supplying Party, PSI shall pay
all of the following which are applicable (the
applicable demand charge rate per this Subsection is
limited by Subsection 3.5):
(a) for any day that Daily Short-Term Power and Energy
is reserved, a demand charge rate to be agreed upon
by the Parties at the time such Daily Short-Term
Power and Energy is reserved, at a rate of up to
$0.778 per kilowatt reserved, except, for any day
during any part of which the amount of such Daily
Short-Term Power and Energy is reduced by IPL, the
agreed upon demand charge will only be paid for the
power still available;
(b) for Daily Short-Term Energy delivered that is
generated by IPL, an energy charge of up to 110% of
the Out-of-Pocket Cost (such cost being as of the
interconnection point or points, as defined in
Article 4 of the 1992 Agreement, taking into
account electrical losses incurred from the source
or sources of such energy to the interconnection
point or points) of supplying such energy;
(c) for Daily Short-Term Energy delivered that is
purchased by IPL from a Third Party, an energy
charge of 100% of the Out-of-Pocket Cost paid
therefor by IPL, plus one (1) mill per kilowatt-
hour of such purchased energy (for difficult to
quantify energy-related costs), plus any
transmission losses resulting on IPL*s system on
account of the transaction, and plus any taxes
incurred by IPL on account of the transaction.
3.2.2 Except as otherwise provided in Subsection 3.2.3
below, when PSI is the supplying Party, IPL shall pay all of
the following which are applicable (the applicable demand
charge rates per this Subsection are limited by Subsection
3.6):
(a) for any day that Daily Short-Term Power and Energy
is reserved, a demand charge rate to be agreed upon
by the Parties at the time such Daily Short-Term
Power and Energy is reserved. Said demand charge
rate shall be at a rate of up to $797 per megawatt
reserved (such charge pertains to the production
component only), the total charge in any week shall
be no more than the product of $4,781 and the
greatest number of megawatts reserved in any day
during said week, except for any day during any
part of which the amount of such Daily Short-Term
Power and Energy is reduced by PSI, the agreed upon
demand charge will only be paid for the power still
available. Non-firm transmission service per the
provisions of the CINergy Services, Inc., FERC
Electric Tariff, Original Volume No. 3, Non-Firm
Point-to-Point Transmission Service Standard Tariff
- NFT (or any successor transmission tariff of
similar service) must be obtained;
(b) for Daily Short-Term Energy delivered that is
generated by PSI, an energy charge of up to 110% of
the Out-of-Pocket Cost (such cost being as of the
interconnection point or points, as defined in
Article 4 of the 1992 Agreement, taking into
account electrical losses incurred from the source
or sources of such energy to the interconnection
point or points) of supplying such energy;
(c) for Daily Short-Term Energy delivered that is
purchased by PSI from a Third Party, an energy
charge of 100% of the Out-of-Pocket Cost paid
therefor by PSI, plus $1.00 per megawatt-hour of
such purchased energy (for difficult to quantify
energy-related costs), plus any transmission losses
resulting on the system of the CINergy Operating
Companies on account of the transaction, and plus
any regulatory commission charges and taxes
incurred by PSI on account of the transaction.
3.2.3 When Daily Short-Term Power and Energy is
purchased by the supplying Party from a Third Party
specifically for the reserving Party, the reserving
Party shall pay the supplying Party all of the following
which are applicable:
(a) the demand charge paid therefor by the supplying
Party to the Third Party for such electric power
and energy;
(b) when IPL is the supplying Party:
(1) for any day such Daily Short-Term Power and
Energy is reserved, a demand charge per kilowatt to
be agreed upon by the Parties at the time such
Daily Short-Term Power and Energy is reserved, at a
rate of up to $0.058 per kilowatt reserved (such
charge pertains to the reservation of
transmission). In the event the amount of such
Daily Short-Term Power and Energy is reduced by
IPL, said demand charge shall be reduced by the sum
of (i) one-sixteenth (1/16) of the said agreed upon
daily rate per kilowatt of the reduction for each
hour in any day during which such reduction is in
effect, such reduction not to exceed the agreed
upon demand charge for such day, and (ii) the
reduction, if any, in the demand charge paid by IPL
to the Third Party;
(2) for each kilowatt-hour purchased by IPL from a
Third Party to supply Daily Short-Term Energy
delivered during such period, an energy charge of
100% of the Out-of-Pocket Cost paid therefor by
IPL, plus one (1) mill per kilowatt-hour (for
difficult to quantify energy-related costs), plus
any transmission losses resulting on IPL*s system
on account of the transaction, and plus any taxes
incurred by IPL on account of the transaction;
(c) when PSI is the supplying Party:
(1) Non-firm transmission service per the
provisions of the CINergy Services, Inc., FERC
Electric Tariff, Original Volume No. 3, Non-Firm
Transmission Service Standard Tariff - NFT (or any
successor transmission tariff of similar service)
must be obtained. In the event the amount of such
Daily Short-Term Power and Energy is reduced by
PSI, said demand charge shall be reduced by the sum
of (i) one-sixteenth (1/16) of the said agreed upon
daily rate per megawatt of the reduction for each
hour in any day during which any such reduction is
in effect, such reduction not to exceed the agreed
upon demand charge for such day, and (ii) the
reduction, if any in the demand charge paid by PSI
to the Third Party;
(2) for each megawatt-hour purchased by PSI from a
Third Party to supply Daily Short-Term Energy
delivered during such period, an energy charge of
100% of the Out-of-Pocket Cost paid therefor by
PSI, plus $1.00 per megawatt-hour (for difficult to
quantify energy-related costs), plus any
transmission losses resulting on the system of the
CINergy Operating Companies on account of the
transaction, and plus any regulatory commission
charges and taxes incurred by PSI on account of the
transaction.
3.3 Notwithstanding the rates stated in the Subsections
3.1.1, 3.1.3, 3.2.1 and 3.2.3 above, when IPL is the
supplying Party, the sum of the demand and energy charges for
each specific reservation made pursuant to Section 2 of this
Service Schedule C shall not:
(1) exceed the total of:
(i) the product of the number of kilowatts
reserved for such reservation times the maximum
Weekly or Daily demand charge, whichever is
applicable, specified above in Subsections 3.1.1,
3.1.3, 3.2.1 and 3.2.3, as appropriate; and
(ii) the product of the number of kilowatt-hours
supplied for such reservation times 110% of the
average cost per kilowatt-hour of energy generated
by IPL's Petersburg Unit No. 4 for the last
preceding month during which it was run; or
(2) be less than 110% of the total Out-Of-Pocket Cost
of supplying the Short Term Energy for such reservation.
3.4 Notwithstanding the rates stated in Subsections 3.1.2,
3.1.3, 3.2.2 and 3.2.3 above, when PSI and CINergy Services
are the supplying Party, the sum of the demand and energy
charges for each specific reservation made pursuant to
Section 2 of this Service Schedule C shall not:
(1) exceed the total of:
(i) the product of the number of megawatts reserved
for such reservation times the maximum Weekly or
Daily demand charge, whichever is applicable,
specified above in Subsections 3.1.2, 3.1.3, 3.2.2
and 3.2.3, as appropriate, and plus
(ii) the product of the number of megawatt-hours
supplied for such reservation times 110% of the
average cost per megawatt-hour of energy generated
by the CINergy Operating Companies* Zimmer Unit No.
1 and Gibson Unit No. 5 for the preceding month;
nor
(2) be less than 100% of the Out-Of-Pocket Costs of
supplying the Short Term Energy for such reservation.
3.5 The aggregate instant total capacity of all IPL sales
under this and other Service Schedules which are a part of
this and other IPL Agreements, for which the rates charged
have been supported on the basis that total revenues will not
exceed the costs of Petersburg Unit No. 4, is limited to
515MW.
3.6 The total power of all sales by the CINergy Operating
Companies and CINergy Services under this and other
agreements of the CINergy Operating Companies and CINergy
Services, for which the agreed upon demand charge is
determined based on Zimmer Unit No. 1 and Gibson Unit No. 5,
is limited to 925 MWs (CINergy Operating Companies* Zimmer
Unit No. 1 Net Demonstrated Capability of 612 MWs and Gibson
Unit No. 5 Net Demonstrated Capability of 313 MWs) on an
hourly basis. For sales in excess of the power limitation of
925 MWs noted above, the rate shall consist of an energy
charge of up to 110% of Out-of-Pocket Cost and a demand
charge of up to $1,252 per megawatt per week or a demand
charge of up to $209 per megawatt per day, the total charge
in any one week shall be no more than the product of $1,252
and the greatest number of megawatts reserved in any hour
during said week (such charge pertains to the production
component only). Non-firm transmission service per the
provisions of the CINergy Services, Inc., FERC Electric
Tariff, Original Volume No. 3, Non-Firm Point-to-Point
Transmission Service Standard Tariff - NFT (or any successor
transmission tariff of similar service) must be obtained; but
in no event shall the total revenue (energy charge and demand
charge combined) be less than 100% of the Out-of-Pocket Costs
of supplying the Short-Term Energy for such reservation.
Notwithstanding all previous Subsections, when power is sold
under both this Subsection and Subsection 3.1.2 in any week,
the total demand charge will be the weighted average demand
charges in this Subsection and Subsection 3.1.2. Such
weighting will be developed by adding the number of hours
that power was provided under this Subsection times the
demand charge under this Subsection and the number of hours
that power was provided under Subsection 3.1.2 times the
demand charge in Subsection 3.1.2, with such sum being
divided by the total number of hours in the week. Also, when
power is sold under both this Subsection and Subsection 3.2.2
in any day, the total demand charge will be the weighted
average demand charges in this Subsection and Subsection
3.2.2. Such weighting will be developed by adding the number
of hours that power was provided under this Subsection times
the demand charge under this Subsection and the number of
hours that power was provided under Subsection 3.2.2 times
the demand charge in Subsection 3.2.2, with such sum being
divided by the total number of hours in the day.
EXHIBIT IV
(SECOND REVISION)
SERVICE SCHEDULE D
CARMEL SOUTHEAST TAP NETWORK POWER AND ENERGY TRANSFER
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of and under the
Interconnection Agreement (referred to herein as the "1992
Agreement") dated as of May 1, 1992 between Indianapolis
Power & Light Company (hereinafter called "IPL") and PSI
Energy, Inc., formerly named Public Service Company of
Indiana, Inc., (hereinafter called "PSI") and CINergy
Services, Inc. (hereinafter called "CINergy Services"), shall
become effective as of the earlier date of either September
1, 1995 or the effective date of the Third Amendment, dated
June 30, 1995, and shall continue in effect through August
31, 1996, unless extended as provided in Section 6 hereof.
IPL, PSI and CINergy Services are sometimes hereinafter
referred to individually as "Party" or collectively as
"Parties" where appropriate.
SECTION 2 - FACILITIES TO BE PROVIDED
2.1 PSI shall provide, install, operate and maintain, at its
own expense, during the term of this Service Schedule D as
defined in Section 6 hereof, the following facilities:
(i) At its Carmel Southeast Substation - a 138,000 volt
three-phase interrupting device, a 24/40 MVA transformer,
12,470 volt metering equipment, relaying, switching, a
supervisory control remote terminal unit, a communication
circuit from the supervisory unit to IPL*s Load Dispatch
Office and appurtenant equipment, all of which shall be
subject to the prior approval of IPL. PSI shall be
responsible for installing, owning and maintaining all
necessary protection equipment required by IPL to protect
IPL*s facilities associated with Carmel Tap. PSI*s remote
terminal unit shall provide data acquisition, remote status
and control of the load and allow PSI to provide real time
dispatch of their generation to their load as well as load
control while IPL will be provided real time breaker status
and load data.
(ii) A 138,000 volt transmission line extending from
Carmel Southeast Substation to Transmission Tower
Number 7 (Map Section 173A) on IPL's 138,000 volt
North-River Road (132-57) transmission line,
together with a 138,000 volt tap at such tower, to
be known as the Carmel Tap Point.
2.2 IPL shall provide, install, operate and maintain, as
direct assignment facilities at the sole benefit and expense
of PSI, during the term of the Carmel Tap Point as defined in
Section 6 hereof, a 138,000 volt two-way switching point with
supervisory controlled 138,000 volt line interrupting
disconnect switches and associated facilities such as a
switch tower, supervisory terminal unit and communication
circuit at the Carmel Tap Point.
SECTION 3 - SERVICES TO BE RENDERED
3.1 The Parties hereto mutually agree that their respective
radial distribution systems will not be operated in parallel
through the Carmel Tap Point. Electric energy supplied by
IPL to PSI at the Carmel Tap Point will be treated as
capacity and energy simultaneously transferred into IPL's
system by PSI through the other interconnection points of the
Parties and will be used only to supply the ultimate
consumers of PSI who are or may be served from PSI's Carmel
Southeast Substation. Any capacity or energy delivered by
IPL to PSI through the Carmel Tap Point shall be
simultaneously supplied by PSI to IPL through any of the
interconnection points of the Parties. PSI*s supplied energy
shall include an adder of approximately 3%-5% to the capacity
and energy delivered to the Carmel Tap by IPL to compensate
IPL for capacity and energy losses occurring on IPL*s system
and PSI*s tapped transmission line and transformer bank
(metered at secondary voltage) due to the transfer of energy
to the Carmel Tap Point.
3.2 IPL shall provide PSI with the following services:
1) Firm, network transmission service including a
capacity reservation (34,500 volt, 138,000 volt and
above) of up to and including 20 MW*s (measured at
the other IPL/PSI interconnection points as defined
in the 1992 Agreement). Said service and
reservation shall be planned for and provided on
the same basis as IPL*s firm native load customers
only during the term of this service schedule as
set forth in Section 6 herein of this Agreement.
2) Non-firm transmission service (34,500 volt, 138,000
volt and above) up to and including 30 MW*s
(measured at the other IPL/PSI interconnection
points in the 1992 Agreement) in addition to the
firm transmission listed in Point 1 above. Said
non-firm service shall be on an as available,
interruptible basis when requested by PSI.
Upon IPL*s request, PSI shall immediately curtail and/or
interrupt its firm load served by the 20 MW firm network
transmission and reservation service on the same basis as
IPL*s firm native load customers. If PSI*s demand exceeds
their reservation (herein called "excess loading") PSI shall
demonstrate that all such demand exceeding their reservation
is 1) immediately interruptible by contract or 2) that such
excess loading occurred due to emergency switching lasting
less than a total of two (2) weeks within any six-month
period. Otherwise such excess loading shall be treated as
having automatically increased PSI*s reservation, for billing
purposes only, until IPL is satisfied PSI has taken actions
to permanently eliminate such excess loading. IPL shall
coordinate non-emergency maintenance outages with PSI and
provide a minimum notification by 12:00 noon of the day
before the scheduled outage.
3.3 IPL and PSI shall periodically conduct independent
and/or joint studies of their future systems to serve the
Indianapolis northeast metropolitan area. PSI shall annually
update and provide IPL with their ten year demand projections
for the Carmel Tap Point. If such studies indicate problems
due to PSI*s 20 MW reservation or projected increase in
reservation, then IPL and PSI shall jointly or independently,
as soon as practicable, develop plans and estimates of cost
for the installation of any additional equipment or
facilities necessary to effect a long term solution to such
problem so that transmission services hereunder may be
reliably continued in accordance with IPL standards.
IPL*s studies of this service cover the first five years and
identified facilities during that period which may need to be
upgraded if area demand grows faster than presently
projected. If facility upgrades are required, PSI shall pay
annual carrying costs on a monthly basis during the time
period from the in-service date of the facilities until IPL*s
area load increases by the amount of PSI*s 20 MW reservation
plus actual and projected increases in reservation (herein
called "period of advancement") after which the remaining
costs shall be rolled into IPL*s rate analysis. Any time
PSI*s reservation, as determined under 3.2 above, requires
IPL to install facilities in advance of its need, PSI shall
pay annual carrying cost on such facilities during the period
of advancement. Increased reservations beyond 20 MWs shall
be treated as interruptible until all necessary facilities to
reliably accommodate these loads are placed in service. IPL
will not increase or upgrade the capacity of its existing or
planned transmission facilities in order to provide service
under this Agreement if doing so would unduly 1) impair IPL*s
system reliability or 2) jeopardize the benefits of service
or 3) increase the cost of service to IPL*s Native Load
Customers and other customers to whom IPL has a pre-existing
contractual obligation.
In the event PSI does not elect to continue its reservation
after the term of this Service Schedule, PSI shall pay 1) the
stranded cost of all IPL*s facilities directly assignable to
providing firm service for PSI*s reservation and 2) the
remaining annual cost on a monthly basis of all system
improvements from the termination date until IPL*s area load
increase equals the amount of PSI*s reservation. In the
event IPL can*t obtain regulatory approvals for facility
modifications needed to increases PSI*s reservation, then
firm service shall not be provided for the amount of the
increased service reservation.
3.4 PSI shall provide for ancillary services such as dynamic
reactive var/voltage support, all generation reserves, real
time generation dispatch, load following and dispatch control
services needed to support the operation of the Carmel Tap
Point.
3.5 IPL shall file with the FERC an amendment to Service
Schedule D for all direct assignment facilities (not covered
in Section 2.2) to be provided for PSI by IPL under this
Service Schedule and for all costs for advanced system
improvements during the "period of advancement" due to the
PSI transmission reservation provided under Service Schedule
D. FERC*s failure to accept the cost assignments for either
direct assignment facilities and/or advanced system
improvements due to the PSI network load service provided in
this Service Schedule D shall result in 1) IPL terminating
its obligation to provide and plan for PSI*s transmission
reservation as covered in Section 3.2 and Section 3.3 above
or 2) PSI may elect to reduce the level and/or firmness of
PSI*s transmission reservation so that additional direct
assignment facilities and/or system improvement facility
advancements won*t be needed or 3) PSI may elect to terminate
service provided hereunder provided that upon termination of
this Service Schedule D by PSI, PSI shall remain responsible
for paying IPL all costs remaining for all direct assignment
facilities provided by IPL and all remaining costs for all
advanced system improvements attributed to PSI during the
period of advancement where said facilities have been filed
with and accepted by the FERC including the direct assignment
facilities provided initially under Section 2.2. The
stranded cost of the direct assignment facilities provided
under Section 2.2 shall be calculated and marked up for tax
effects as shown in Attachment 1 and shall be paid by PSI
within 30 days of receipt of the bill from IPL.
SECTION 4 - DEVIATIONS IN DELIVERIES AT CARMEL TAP POINT
4.1 The Parties agree that with respect to the Carmel Tap
Point, PSI shall simultaneously supply (including adjustments
for losses) to IPL from PSI*s other interconnection points
with IPL the capacity and energy delivered to PSI by IPL.
The Parties recognize, however, that despite their best
efforts to simultaneously supply and deliver capacity and
energy (including adjustments for losses) deviations between
actual and scheduled energy transfers may occur. Electric
energy resulting from such deviations shall, at the option of
IPL, be settled for either by return of equivalent energy or
by payment of Out-Of-Pocket Costs. If equivalent energy is
returned, it shall be returned at times when the generating
costs of IPL are equivalent to the generating costs of IPL at
the time of the deviations or, if IPL elects to have
equivalent energy returned under different conditions, it
shall be returned in such amounts, to be mutually agreed
upon, as will compensate IPL for the difference in
conditions.
IPL, at its option, may elect to bill for such Out-Of-Pocket
Costs, plus ten percent of such cost, for any energy supplied
over and above that scheduled by PSI for any hour or hours
during the billing period. Such costs shall be determined at
the Carmel Tap Point by taking into account electrical losses
incurred from the source or sources of such energy to said
Tap Point.
4.2 If IPL elects to bill for any energy supplied over and
above that scheduled by PSI for any hour or hours during the
billing period where the energy was supplied by a Third Party
then in accordance with the FERC Order 84 the maximum amount
to be billed by IPL to PSI shall be 100% of the Third Party
demand and energy charge plus 1 mill/kwhr (the 1 mill/kwhr
adder is applicable only to transactions with a duration of
less than one year) plus IPL*s network transmission rate as
accepted by the FERC under this Service Schedule D.
SECTION 5 - COMPENSATION
5.1 FIRM SERVICE - Electric power measured in kilowatts
supplied by PSI and delivered at the Carmel Tap Point under
the 1992 Agreement by IPL to PSI shall be billed on a monthly
basis the annual cost of IPL*s transmission system multiplied
by the ratio of the sum of PSI*s twelve 20 MW reservations
divided by IPL*s annual system peak demand which equals
$283,200 annually as calculated in the cost support Appendix
A. The loss factors consisting of a 3-5% adder, as noted in
Section 3.1 hereof, shall include PSI*s radial transmission
line and transformer bank associated with the Carmel Tap
Point and IPL*s 34,500 volt and above transmission system.
The loss factors shall include PSI*s radial transmission line
and transformer bank associated with the Carmel Tap Point and
IPL*s transmission system. The loss factors shall be
determined by the annual transmission system loss studies
performed by IPL and PSI. Also, increases in PSI*s
reservation shall be billed by using the same methodology.
5.2 NON-FIRM SERVICE - Electric power measured in kilowatts
supplied by PSI and delivered at the Carmel Tap Point under
the 1992 Agreement by IPL to PSI shall be billed at $1.18 per
kilowatt-month plus $0.01 per kilowatt-month for IPL dispatch
control. This demand charge for non-firm service applies to
usage above PSI*s firm service reservation and shall be based
upon the difference in maximum hourly demand in kilowatts
measured and the amount of PSI*s reservation in the calendar
month of billing. The loss factors consisting of a 3-5%
adder, as noted in Section 3.1 hereof, shall include PSI*s
radial transmission line and transformer bank associated with
the Carmel Tap Point and IPL*s 34,500 volt and above
transmission system. The loss factors shall be determined by
the annual transmission system loss studies performed by IPL
and PSI.
5.3 DIRECT ASSIGNMENT FACILITIES - PSI shall pay IPL on a
monthly basis IPL*s annual charges on the total installed
cost of the facilities provided in Section 2.2 above
multiplied by IPL*s annual carrying charges as calculated in
Attachment 1 and revisions will be filed with the FERC.
SECTION 6 - TERM OF AGREEMENT
6.1 This Service Schedule shall terminate August 31, 1996
unless PSI notifies IPL at least six (6) months prior to such
termination date that it desires to continue service to the
Carmel Tap Point; provided however, that any continued
service is subject to such terms and conditions as are
mutually agreed to by the Parties.
Fourth Amendment
June 26, 1996
Mr. Ron C. Snead
Cinergy Corporation
139 East Fourth Street
Cincinnati, OH 45201
Re: IPL/PSI Interconnection Agreement - Service Schedule D
Dear Ron:
This is to confirm the phone conversation on June 10, 1996,
in which you and Jerry Fohey, Director, Electric System
Planning, discussed extending our agreement regarding
transmission service IPL provides PSI Energy at the Carmel
Southeast Tap by one year to and including August 31, 1997.
You indicated that PSI Energy was agreeable to so extending
Service Schedule D (Carmel Southeast Tap Network Power and
Energy Transfer).
Please confirm by signature below, Cinergy's agreement that
the existing Service Schedule D, under which IPL currently
provides service to PSI Energy at the Carmel Southeast Tap,
will be extended by one year to and including August 31,
1997, with the same rates, terms and conditions. Further,
Cinergy and IPL agree that PSI Energy also has the option to
take transmission service for the Carmel Southeast Tap under
any open access transmission tariffs that may be filed by IPL
and which become effective after the date of this letter
agreement.
Three original copies of this letter are provided for your
signature. Please return two signed copies to IPL.
Regards,
/s/ John C. Berlier, Jr.
John C. Berlier, Jr.
Vice President - Resource
Planning & Rates
Enclosures
ACKNOWLEDGEMENT
By: /s/ John C. Procario
Title: General Manager
Company: Cinergy
Fifth Amendment
June 10, 1997
Mr. Ron C. Snead
Cinergy Corporation
139 East Fourth Street
Cincinnati, OH 45201
Re: IPL/PSI Interconnection Agreement - Service Schedule D
Dear Ron:
This letter seeks to extend our existing agreement regarding
transmission service IPL provides PSI Energy at the Carmel
Southeast Tap, which expires August 31. IPL proposes to
extend Service Schedule D (Carmel Southeast Tap Network Power
and Energy Transfer), a part of the existing interconnection
agreement between IPL and Cinergy, dated June 30, 1995, by
one year, to and including August 31, 1998.
Please confirm by signature below, Cinergy's agreement that
the existing Service Schedule D, under which IPL currently
provides service to PSI Energy at the Carmel Southeast Tap,
will be extended by one year to and including August 31,
1998, with the same rates, terms and conditions. Further,
Cinergy and IPL agree that PSI Energy also has the option to
take transmission service for the Carmel Southeast Tap under
any open access transmission tariffs that may be filed by IPL
and which become effective after the date of this letter
agreement.
Three original copies of this letter are provided for your
signature. Please return one signed original copy to me and
retain one copy for your files.
Regards,
/s/ John C. Berlier
John C. Berlier
Vice President
Resource Planning & Rates
Enclosures
ACKNOWLEDGEMENT
By: /s/ John C. Procario
Title: Vice President
Electric System Operations
Company: Cinergy Corp.
SIXTH AMENDMENT
TO THE
INTERCONNECTION AGREEMENT
AMONG
INDIANAPOLIS POWER & LIGHT COMPANY
PSI ENERGY, INC.
AND CINERGY SERVICES, INC.
0.01 THIS SIXTH AMENDMENT, dated on the 16th day of December,
1997, among INDIANAPOLIS POWER & LIGHT COMPANY ("IPL"), PSI
ENERGY ("PSI"), INC., and CINERGY SERVICES, INC. ("Cinergy
Services"). IPL, PSI, and Cinergy Services are referred to
individually as "Party" and collectively as "Parties" where
appropriate.
WITNESSETH:
0.02 WHEREAS, There is now in force and effect between IPL,
PSI, and Cinergy Services an Interconnection Agreement, dated
as of May 1, 1992 (the "1992 Agreement"); and
0.03 WHEREAS, the Parties desire to modify the 1992
Agreement, and
0.04 NOW, THEREFORE, in consideration of the premises and
mutual covenants and agreements of the Parties, as herein set
forth, the Parties agree as follows:
1.01 The following provisions of the 1992 Agreement are
modified as follows:
1.01.1 Section 4.01 of the 1992 Agreement shall read
as follows:
"4.01. Delivery Points. All electric energy
delivered under the 1992 Agreement shall be of the
character commonly known as three-phase sixty Hertz
energy, and shall be delivered at the
Interconnection Points specified under Section 1.01
hereof, at a nominal voltage of 138,000 volts at
the Five Points and Centerton Interconnection
Points, at the 138 kV Petersburg Interconnection
Point, and at the Carmel Tap Point; and at a
nominal voltage of 345,000 volts at the Whitestown
and Gwynneville Interconnection Points, and at the
345 kV Petersburg Interconnection Point; and at
such other points and voltages as hereafter may be
agreed upon by the Parties pursuant to Section 1.02
hereof. In addition to the interconnection points
provided in Sections 1.01 and 1.02, PSI may request
IPL deliver electric energy under the 1992
Agreement at interconnection points IPL may have
with third parties (hereinafter referred to as
"Alternate Delivery Points")."
1.01.2 Section 4.03 of the 1992 Agreement shall read
as follows:
"4.03. Metering Points. Electric power and energy
supplied and delivered under the 1992 Agreement
shall be measured by suitable metering equipment
which shall be provided, owned and maintained by
PSI or IPL as designated below at the following
metering points:
(i) 138,000 volt metering equipment installed
by PSI at the Five Points Substation;
138,000 volt metering equipment installed
by PSI at the Centerton Substation;
138,000 and 345,000 volt metering
equipment installed by IPL at the
Petersburg Station; 345,000 volt metering
equipment installed by IPL at its
Sunnyside Substation and at PSI's
Gwynneville and Whitestown Substations;
and 12.47 kV metering equipment installed
by PSI at its Carmel Southeast
Substation, and
(ii) At such other locations as hereafter may
be agreed upon by the Parties pursuant to
Section 1.02 hereof.
Electric power and energy supplied and delivered at
the Alternate Delivery Points specified in Section
4.01 shall be measured by metering equipment either
provided, owned and maintained by IPL or third
parties. Such metering equipment shall not be
subject to Sections 4.04 through 4.07 but shall
meet the reasonable requirements of the Operating
Committee."
1.01.3 Section 6.03 of the 1992 Agreement shall read
as follows:
"6.03. Billing Payments. All bills for amounts
owed by one Party to the other Party shall be due
on the first business day following the fifteenth
(15th) day after the end of the calendar month or
period service was rendered, or on the tenth (10th)
business day following receipt of a bill, whichever
is later. Payments shall be made by electronic
transfer or by such other mutually agreeable method
as shall cause such payment to be available for the
account of the payee on or before the due date.
Interest on unpaid amounts, both principal and
interest, shall accrue daily at the then current
prime interest rate per annum of The Chase
Manhattan Bank, N.A., New York, New York, plus two
percent (2%) per annum, or the maximum rate
permitted by law, whichever is less, from the date
due until the date upon which payment is made."
1.01.4 Section 7.01 of the 1992 Agreement shall read
as follows:
"7.01. Operating Committee Organization and
Duties. To coordinate the operation of their
respective generation, transmission, and
substation facilities in order that the benefits of
the 1992 Agreement may be realized by the Parties
to the fullest practicable extent, the Parties
shall establish a committee of authorized
representatives to be known as the Operating
Committee. Each of the Parties shall designate in
writing delivered to the other Party, the person
who is to act as its authorized representative (the
"OC Representative") on said committee (and the
person or persons who may serve as Alternate
whenever the OC Representative is unable to act).
The OC Representative and Alternate or Alternates
shall each be persons familiar with the generation,
transmission, and substation facilitates of the
system of the Party he represents, and each shall
be fully authorized (i) to cooperate with the other
OC Representative (or Alternates) and (ii) as the
need arises and subject to the declared intentions
of the Parties as herein set forth and to the terms
hereof and the terms of any other agreements then
in effect between the Parties, to determine and
agree from time to time upon the following:
(i) All matters pertaining to the
coordination of maintenance of the
generation and transmission facilities of
the Parties.
(ii) All matters pertaining to the control of
time, frequency, energy flow, kilovar
exchange, power factor, voltage, and
other similar matters bearing upon the
satisfactory synchronous operation of the
systems of the Parties.
(iii) Such other matters not specifically
provided for herein upon which
cooperation, coordination and agreement
as to quantity, time, method, terms and
conditions are necessary, in order that
the operation of the respective systems
of the Parties may be coordinated to the
end that the potential benefits
anticipated by the Parties will be
realized to the fullest extent
practicable.
(iv) All matters pertaining to the delivery of
electric power and energy pursuant to the
1992 Agreement."
1.01.5 Section 8.02 of the 1992 Agreement shall read
as follows:
"8.02. Relative Responsibilities. Each Party
assumes all responsibility for receipt and delivery
of electricity on its system to and from the Points
of Interconnection specified in Section 1.01 hereof
or agreed upon pursuant to Section 1.02 hereof or
as requested by PSI pursuant to Section 4.01.
Neither Party assumes any responsibility with
respect to the construction, installation,
maintenance or operation of the system of the other
Party or of the systems of third parties, in whole
or in part. In no event shall one Party be liable
to the other Party for damage or injury to any
person or property, whatsoever, arising, accruing
or resulting from, in any manner, the receiving,
transmission, control, use, application or
distribution of said electric power and energy.
Each Party shall use reasonable diligence to
maintain its facilities in proper and serviceable
condition, and shall take reasonable steps and
precautions for maintaining the services agreed to
be provided and received under the 1992 Agreement.
Each Party shall be responsible for its own
compliance with all applicable environmental
regulations and shall bear all costs arising from
its failure to comply with such environmental
regulations."
2.01 This Sixth Amendment shall be effective as of February
15, 1998 or as of the date it becomes effective under
applicable regulations or orders of FERC, whichever is later.
3.01 This Sixth Amendment is made subject to the jurisdiction
of any governmental authorities having jurisdiction in the
premises.
IN WITNESS WHEREOF, the Parties have caused this Sixth
Amendment to the 1992 Agreement to be executed by their
respective duly authorized officers, as of the day, month and
year first above-written.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Ramon L. Humke
Ramon L. Humke, President and
Chief Operating Officer
CINERGY SERVICES, INC.
By /s/ Michael E. Martin
Michael E. Martin, Vice President
PSI ENERGY, INC.
By /s/ John Mutz
John Mutz, President
Seventh Amendment
June 11, 1998
Mr. Ron C. Snead
Cinergy Corporation
139 East Fourth St.
Cincinnati, OH 45201
Re: IPL/PSI Interconnection Agreement - Service Schedule D
Dear Mr. Snead:
This letter seeks to extend our existing agreement regarding
transmission service IPL provides PSI Energy at the Carmel
Southeast Tap, which expires August 31. IPL proposes to
extend Service Schedule D (Carmel Southeast Tap Network Power
and Energy Transfer), a part of the existing interconnection
agreement between IPL and Cinergy, dated June 30, 1995, by
one year, to include August 31, 1999.
Please confirm by signature below, Cinergy's agreement that
the existing Service Schedule D, under which IPL currently
provides service to PSI at the Carmel Southeast Tap, will be
extended by one year to and including August 31, 1999, with
the same rates, terms and conditions. Further, Cinergy and
IPL agree that PSI Energy also has the option to take
transmission service for Carmel Southeast Tap under any open
access transmission tariffs that may be filed by IPL and
which become effective after the date of this letter
agreement.
Two original copies of this letter are provided for your
signature. Please return one signed original copy to me and
retain one copy for your files.
Regards,
/s/ Michael G. Banta
Michael G. Banta,
Vice President
and Assistant General Counsel
ACKNOWLEDGEMENT
By: /s/ John C. Procario
John C. Procario
Title: Vice President
Company: Cinergy Services, Inc., acting as agent for and on behalf of
PSI Energy, Inc.
Eighth Amendment
June 18, 1999
Mr. Ron Snead
Cinergy Corporation
139 East Fourth Street
Cincinnati, OH 45201
RE: IPL/PSI INTERCONNECTION AGREEMENT - Service Schedule D
Dear Mr. Snead:
This letter seeks to extend our existing agreement regarding
transmission service IPL provides PSI Energy at the Carmel
Southeast Tap, which expires August 31, 1999. IPL proposes to
extend Service Schedule D (Carmel Southeast Tap Network Power
and Energy Transfer), a part of the existing interconnection
agreement between IPL and Cinergy, dated June 30, 1995, by one
year, to include August 31, 2000.
Please confirm by signature below, Cinergy's agreement that the
existing Service Schedule D, under which IPL currently provides
service to PSI at the Carmel Southeast Tap, will be extended by
one year to and including August 31, 2000, with the same rates,
terms and conditions. Further, Cinergy and IPL agree that PSI
Energy also has the option to take transmission service for
Carmel Southeast Tap under any open access transmission tariffs
that may be filed by IPL and which become effective after the
date of this letter agreement.
Two original copies of this letter are provided for your signature.
Please return one signed original copy to me and retain one for
your files.
Respectfully,
/s/ Ralph E. Canter
Ralph E. Canter,
Senior Vice President,
Customer Services
REC:rly
ACKNOWLEDGEMENT
By: /s/ John C. Procario
John C. Procario
Title: Vice President
Company: Cinergy Services, Inc., acting as agent for and on behalf of
PSI Energy, Inc.
EXHIBIT 10.4
FACILITIES AGREEMENT
Between
INDIANAPOLIS POWER & LIGHT COMPANY
PUBLIC SERVICE COMPANY OF INDIANA, INC.
---------
Dated: August 16, 1977
CONTENTS
Article Page
Preamble . . . . . . . 1
1 Construction and
Ownership of Transmission
Facilities . . . . . . 1
2 Operation of Facilities 5
3 Metering Points and 6
Metering
4 Term . . . . . . . . . 7
5 Regulatory Authorities 7
6 Notices. . . . . . . . 8
7 Waivers. . . . . . . . 8
8 Assignment . . . . . . 8
9 Arbitration. . . . . . 8
10 Additional Rights and
Responsibilities . . . 8
Appendix A - Map of Transmission Line Facilities including Facilities to be
Constructed and Provided Pursuant to Article 1 and Article 10
0.01 Agreement, dated August 16, 1977, between
Indianapolis Power & Light Company (Indianapolis Company)
and Public Service Company of Indiana, Inc. (Service
Company), both of whom are Indiana corporations,
WITNESSETH:
0.02 WHEREAS, Indianapolis Company and Service
Company, severally, own electric facilities and are
engaged in the generation, transmission, distribution,
and sale of electric power and energy in Indiana; and
0.03 WHEREAS, the systems of the parties are
directly interconnected through certain transmission line
facilities and in order to further strengthen the
respective transmission systems of the parties and the
interconnections between such systems, the parties now
desire that certain 345,000-volt transmission line
facilities be construed as herein provided;
0.04 NOW, THEREFORE, in consideration of the
premises and of the mutual covenants set forth, the
parties agree as follows:
ARTICLE 1
CONSTRUCTION AND OWNERSHIP OF
TRANSMISSION FACILITIES
General
1.01 The parties shall each construct a part of, as
hereinafter provided in this Article 1 and Article 10,
certain 345,000-volt transmission line facilities and
associated appurtenances, including switching, control,
metering, telemetering, and protective equipment,
connecting the following:
Service Company's Columbus Substation located
in Columbus, Indiana, to Indianapolis Company's
Sunnyside Substation located in Indianapolis,
Indiana.
Indianapolis Company's Petersburg Station, near
Petersburg, Indiana, to Service Company's Gibson-
Bedford (southmost) 345,000-volt transmission line.
The approximate routes of such transmission lines (herein
called "Line" or collectively called "Lines") to be so
constructed and provided are shown on the map attached
hereto and made a part hereof as Appendix A. All Lines,
except where otherwise specified, shall be single-circuit
and shall be constructed with two 954,000 cm ACSR
conductors per phase, or equivalent, and suitable ground
wires. Where a company is required to build a single-
circuit line, it may elect to place such circuit on one-
half of a double-circuit tower and reserve the vacant one-
half of the double-circuit tower for its future use.
Definitions
1.02 The following terms, wherever used in this
agreement, shall have the following meanings:
1.021 "Sunnyside-Columbus Line" means the Line
to be constructed hereunder, which is to extend from
Indianapolis Company's Sunnyside Substation to
Service Company's Columbus Substation.
1.022 "Petersburg-Cato Line" means the Line to
be constructed hereunder, which is to extend from
Indianapolis Company's Petersburg Station to the W
Interconnection Point defined in subsection 1.052
hereof.
1.023 "Carthage Substation" means the 345,000-
volt portion of Service Company's proposed
substation to be located near Carthage, Indiana, or
at such other location as Service Company may
specify to Indianapolis Company; provided, that on
or before April 1, 1978, Indianapolis Company and
Service Company shall reach an agreement in writing
as to the general location of Carthage Substation,
for the sole purpose of determining the point "Z"
past which the Sunnyside-Columbus Line must pass;
otherwise, the Carthage Substation and
Interconnection Point Z shall no longer be deemed a
part of this agreement and any provision of this
agreement referring to or which is affected by the
Carthage Substation or Interconnection Point Z shall
be deemed amended to exclude any such reference or
affect.
1.024 "Shelbyville Substation" means the
345,000-volt substation which Service Company plans
to install at the site of their existing 138 kV
"Northeast" Shelbyville Substation.
The parties shall cooperate to assure the maximum
coordination practicable in the design of the facilities
to be installed hereunder with each of the party's
existing facilities.
Coordination of Construction Programs
1.03 The parties shall coordinate their
construction programs and otherwise cooperate to achieve
to the fullest extent practicable, the simultaneous
completion of all portions of a particular Line.
Further, the parties shall coordinate such construction
programs so as to achieve simultaneous completion of all
facilities designated in this agreement. Each party will
use its best efforts to insure that the facilities to be
provided are completed and in service by April 1, 1982;
provided that Service Company reserves the right to
construct Carthage Substation at its convenience.
Indianapolis Company
1.04 Indianapolis Company shall provide, own, and
construct, or cause to be constructed, at its own
expense, the following described facilities:
1.041 A 345,000-volt Line (Sunnyside-Columbus
Line), approximately seventy miles in length, to
extend in a generally southeasterly direction from
Sunnyside Substation to an undetermined point near
Carthage, Indiana (herein called Z Interconnection
Point), thence continuing in a generally
southwesterly direction past Shelbyville Substation
to existing Service Company's Columbus Substation,
where it shall be connected to Service Company's
terminal equipment described in subsection 1.051.
1.042 At Sunnyside Substation, the necessary
terminal equipment, including facilities suitable
for the control of the Sunnyside-Columbus Line and
essential to the protection of line and station
equipment. Such terminal equipment shall include
not less than two 345,000-volt ultra-high-speed
automatic reclosing circuit breakers, appurtenant
disconnecting switches and associated equipment,
protective relays and associated equipment, and such
other items as may be required and suitable for the
control of such Line and for the coordination of
such control with terminal equipment to be provided
by Service Company pursuant to subsection 1.051.
1.043 At said Sunnyside Substation, the
necessary 345,000-volt metering equipment which,
subject to subsection 1.023 and in accordance with
section 10.01, shall be moved to and installed at
Carthage Substation at Indianapolis Company's
expense, for the purpose of monitoring flows on the
Sunnyside-Carthage Line, as described in Article 3.
1.044 At Indianapolis Company's Petersburg
Station, the necessary terminal equipment, including
facilities suitable for the control of the Gibson-
Petersburg and Petersburg-Bedford Lines and
essential to the protection of line and station
equipment. Such terminal equipment shall include
not less than two 345,000-volt ultra-high-speed
automatic reclosing circuit breakers, appurtenant
disconnecting switches and associated equipment,
protective relays and associated equipment, and such
other items as may be required and suitable for the
control of such Lines for the coordination of such
control with terminal equipment now existing and
operational at Service Company's Gibson Station and
Bedford Substation.
1.045 At said Petersburg Station, the
necessary 345,000-volt metering equipment for
metering the flows on the Gibson-Petersburg and
Petersburg-Bedford Lines, as described in Article 3.
Service Company
1.05 Service Company shall provide, own, and
construct, or cause to be constructed, at its own
expense, the following described facilities:
1.051 At Service Company's Columbus
Substation, the necessary terminal equipment
including facilities suitable for the control of the
Sunnyside-Columbus Line and essential to the
protection of line and station equipment. Such
terminal equipment shall include not less than one
345,000-volt ultra-high-speed automatic reclosing
circuit breaker and appurtenant disconnecting and
associated equipment, protective relays and
associated equipment, and such other items as may be
required and suitable for the control of such Line
and for the coordination of such control with
terminal equipment to be provided at said Sunnyside
Substation by Indianapolis Company pursuant to
subsections 1.042 through 1.045.
1.052 A 345,000-volt double-circuit Line
[Petersburg to Gibson-Bedford (southmost) Line],
approximately five miles in length, to extend in a
generally southerly direction from Indianapolis
Company's Petersburg Station to an undetermined
point near Cato, Indiana (herein call Point "W"), on
Service Company's Gibson-Bedford (southmost) Line.
The said Line shall be connected to the Gibson-
Bedford Line in the manner hereinafter described.
The Gibson-Bedford Line shall be opened at Point W
and one circuit of the Petersburg-Cato Line
connected to the Gibson-Cato section of the Gibson-
Bedford (southmost) Line. The other circuit of the
Petersburg-Cato Line shall be connected to the Cato-
Bedford section of the Gibson-Bedford (southmost)
Line. At Indianapolis Company's Petersburg Station,
the newly formed Petersburg-Gibson and Petersburg-
Bedford Lines shall be connected to Indianapolis
Company's terminal equipment as described in
subsections 1.044 and 1.045.
Communication, Telemetering, and Load Control Facilities
1.06 Each party shall provide, own, and construct
or cause to be constructed at its own expense the
facilities described under its name in this Section:
1.061 By Indianapolis Company, at its
Petersburg Station and at the Carthage Substation or
in the event Carthage Substation is not operational,
at its Sunnyside Substation and at other suitable
locations as it may determine, such communication,
telemetering and load control facilities as shall
hereafter be determined by the parties to be
necessary for the proper interconnected operation of
their respective systems.
1.062 By Service Company, at its Columbus
Substation, Carthage Substation, and at other
suitable locations as it may determine, such
communication, telemetering and load control
facilities as shall hereafter be determined by the
parties to be necessary for the proper
interconnected operation of their respective
systems.
Maintenance of Facilities
1.07 Each party shall keep, or shall cause to be
kept, the Line or Lines, together with all associated
facilities and appurtenances described in this Article 1
that is to be provided and owned by each, in a suitable
condition of repair at all times, at each party's own
expense, in order that any such Line will operate in a
reliable and satisfactory manner and in order that
reduction in the capacity of any such Line will be
avoided. If at any time any party is not satisfied that
the facilities of another are being maintained in a
suitable condition of repair, it may, by written notice
given to the other party, call for a special study by the
parties to determine what, if anything, should be done to
place such facilities in a suitable condition of repair.
If the parties are unable to mutually agree upon a
decision within a reasonable time, the matter shall be
settled by arbitration in accordance with Article 9
hereof.
Future Transmission Facilities
1.08 The facilities to be provided by each party as
set forth above are governed by (1) the economies of
mutual transmission facilities and (2) the aggregate
interconnection capacity as it relates to the services
being furnished under the several agreements entered into
between the parties hereto. The expansion of the
parties' respective transmission systems during the term
of this agreement may make it necessary or desirable that
a party add-to, replace, relocate, or remove portions of
facilities now or hereafter provided by it. Either party
shall have the right to so add-to, replace, relocate, or
remove portions of facilities now or hereafter provided
by it, subject, however, to the understanding that in so
doing such party does not interfere with the purposes and
benefits desired under this Facilities Agreement as
herein above expressed, or with the performance of (1)
the agreement between Indianapolis Company and Service
Company, dated May 1, 1962, as amended; (2) agreements
between Indianapolis Company and its other interconnected
companies; (3) agreements between Service Company and its
other interconnected companies; (4) the agreement among
Indianapolis Company, Service Company, and Indiana &
Michigan Electric Company dated April 24, 1968; and (5)
the agreement among East Kentucky Power Cooperative,
Incorporated, Indianapolis Company, Kentucky Utilities
Company, and Service Company, dated July 9, 1971, as
amended.
ARTICLE 2
OPERATION OF FACILITIES
2.01 When a Line provided for herein is completed,
it shall be appropriately connected, physically and
electrically, to the systems of the appropriate parties,
and thereafter, during the term of this agreement, such
systems shall be operated in continuous synchronism
through such Line. If synchronous operation through any
line becomes interrupted either manually or automatically
for any reason, including scheduled maintenance that has
been agreed to by the parties, the parties shall
cooperate to remove the cause of the interruption and
restore the Line to normal operating condition as soon as
practicable. No party shall be liable to any other party
for any damage or loss of revenue caused by any such
interruption. All circuit breakers and associated
terminal facilities shall be operated by the party that
owns such facilities.
ARTICLE 3
METERING POINTS AND METERING
Metering Points
3.01 Suitable metering equipment shall be provided,
owned, and maintained by the owners thereof at the
metering points and voltages as hereinbelow set forth,
and at such other points and voltages and with such
ownership as may be agreed upon by the parties:
3.011 Should Gibson Unit #5 or other
generation which would affect losses be installed,
located of the metering shall be reviewed.
3.012 In respect of the X Interconnection
Point, 345,000-volt metering equipment owned by
Indianapolis Company and installed at Indianapolis
Company's Sunnyside Substation, subject to being
moved pursuant to Section 10.01 to Interconnection
Point Z, at Indianapolis Company's expense and to be
installed in Service Company's Carthage Substation
for the purpose of monitoring the flows in the
Sunnyside-Carthage Line.
3.013 In respect of the Y Interconnection
Point, 345,000-volt metering equipment owned by
Indianapolis Company and installed at Indianapolis
Company's Petersburg Station.
Metering.
3.02 Suitable metering equipment at the metering
points as provided in Section 3.01 above shall include
standard types of electric meters, and acceptable
appurtenances as shall be necessary to give for each
direction of flow the following quantities: (1) a
continuous automatic graphic record of both kilowatts and
kilovars, (2) an automatic record of the kilowatt-hours
for each clock hour, and (3) a continuous integrating
record of the kilowatt-hours. Additions or deletions to
the above three items shall be at the mutual consent of
the parties involved.
3.03 Measurements of electric energy for the
purpose of effecting settlements shall be made by
standard types of electric meters installed and
maintained by the owners at the metering points as
provided under Section 3.01 above. The timing devices of
all meters having such devices shall be maintained in
time synchronism as closely as practicable. The meters
shall be sealed and the seals shall be broken only
occasions when the meters are to be tested or adjusted.
3.04 The aforesaid standard metering equipment
shall be tested by the owners at suitable intervals and
its accuracy of registration maintained in accordance
with good practice. On request of any party, a special
test may be made at the expense of the party requesting
such special test. Representatives of all parties shall
be afforded opportunity to be present at all routine or
special tests and upon occasions when any readings, for
purposes of settlements, are taken from meters not
bearing an automatic record.
3.05 If any test of metering equipment shall
disclose an inaccuracy exceeding two percent, the
accounts among the parties for service theretofore
delivered shall be adjusted to correct for the inaccuracy
disclosed over the shorter of the following two periods:
(1) for the thirty-day period immediately preceding the
day of the test or (2) for the period that such
inaccuracy may be determined to have existed. Should the
metering equipment as provided for under Section 3.02
above at any time fail to register, the electric power
and energy delivered shall be determined from the best
available data.
3.06 The parties hereto understand and agree that
the establishment of the metering points as set forth in
Section 3.01 hereof, determines each party's
responsibility for the line losses incurred between such
metering points.
ARTICLE 4
TERM
4.01 This agreement shall become effective on the
date first above-written, shall continue until December
31, 2012, and shall remain in full force and effect
thereafter unless terminated under Section 4.02 hereof.
4.02 Either party upon at least 5-years prior
written notice to the other may terminate this agreement
on December 31, 2012, or on any anniversary of said date.
ARTICLE 5
REGULATORY AUTHORITIES
5.01 This agreement is subject to any governmental
authority having jurisdiction in the premises.
ARTICLE 6
NOTICES
6.01 All notices and requests under this agreement
shall be in writing and shall be delivered in person or
sent by registered or certified mail addressed to the
Chief Executive Officer of the party to be served at such
party's general office or at such other address as such
party may from time to time designate in writing.
ARTICLE 7
WAIVERS
7.01 Any waiver at any time of any rights as to any
default or other matter arising hereunder, shall not be
deemed a waiver as to any other default or matter. Any
delay, short of the statutory period of limitation, in
asserting any right hereunder shall not be deemed a
waiver of such right.
ARTICLE 8
ASSIGNMENT
8.01 Either party may assign this agreement by way
of pledge to a trustee under a mortgage securing its
indebtedness or to a successor corporation acquiring its
electric utility property and business substantially as
an entirety, provided such successor corporation assumes
all obligations of the assignor hereunder. Such
successor shall be substituted for the assignor under
this agreement, but the assignor shall not be released
from any obligations set forth herein. Except as
aforesaid, neither party shall assign this agreement
without the prior written consent of the other.
ARTICLE 9
ARBITRATION
9.01 Any controversy or claim arising out of, or
relating to, this agreement or the breach of it shall be
settled by arbitration in Indianapolis, Indiana, in
accordance with the rules of the American Arbitration
Association, and judgment upon the award rendered, may be
had in any court having jurisdiction thereof.
ARTICLE 10
ADDITIONAL RIGHTS AND
RESPONSIBILITIES
10.01 At the time of construction of the Carthage
Substation, or such other substation as may be specified
pursuant to subsection 1.023 hereof, Service Company
shall provide, own, and construct, or cause to be
constructed, at its own expense, the following described
facilities:
10.011 All facilities incident and appropriate
to the establishment of a Sunnyside-Carthage Line
and a Carthage-Columbus Line out of the Sunnyside-
Columbus Line, including, without limitation, the
breaking of the Sunnyside-Columbus Line;
constructing such new 345,000-volt transmission line
as may be required to connect the two portions of
the Sunnyside-Columbus Line to Carthage Substation
at Interconnection Point Z; 345,000-volt ultra-high-
speed automatic reclosing circuit breakers to
average at least one per termination unless
otherwise agreed to; appurtenant disconnecting and
associated equipment; protective relays and
associated equipment and such other items as may be
required and suitable for the control of such Lines
and for the coordination of such control with
terminal equipment at Indianapolis Company's
Sunnyside Substation; provided that Indianapolis
Company (1) shall pay Service Company for the cost
and Indianapolis Company will assume ownership of
one of the 345,000-volt ultra-high-speed automatic
reclosing circuit breakers and associated equipment
appertaining thereto upon receipt and approval of an
itemized statement therefore, and (2) shall, at its
expense, move the metering equipment from Point "X"
to Point "Z".
10.02 Service Company reserves the right to install
a 345,000/138,000-volt transformer at their Shelbyville
Substation, tapped on the Sunnyside-Columbus Line through
a 345,000-volt circuit switcher, and including such other
appurtenant disconnecting and associated equipment;
protective relays and associated equipment and such other
items as may be required and suitable for the control of
such substation and for the coordination of such control
with terminal equipment at the remote ends of the
connecting Lines; provided, that Service Company shall
pay the costs of such substation and provided, that
Service Company shall pay the costs of bringing the
Sunnyside-Columbus Line into the Shelbyville Substation.
10.03 Should it appear to be advantageous from an
engineering and economic standpoint at a future date to
further coordinate or add-to the transmission system
additions covered by this agreement, Indianapolis Company
and Service Company agree to mutually conduct such
studies as necessary of the proposed system at that time
to ascertain the mutual benefits.
IN WITNESS WHEREOF, the parties have caused this
agreement to be duly executed as of the date first above-
written.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Zane G. Todd
PUBLIC SERVICE COMPANY OF INDIANA, INC.
By /s/ Hugh A. Barker
APPENDIX A
Map of Transmission line facilities including facilities
to be constructed and provided pursuant to Article 1 and
Article 10.
AMENDMENT NO. 1
To
FACILITIES AGREEMENT
Between
INDIANAPOLIS POWER & LIGHT COMPANY
And
PUBLIC SERVICE COMPANY OF
INDIANA, INC.
This amendment, dated as of June 1, 1981 between
Indianapolis Power & Light Company (Indianapolis Company)
and Public Service Company of Indiana, Inc. (Service
Company), both of whom are Indiana corporations,
WITNESSETH:
WHEREAS, there is now in effect between Indianapolis
Company and Service Company a Facilities Agreement dated
August 16, 1977 (the "Facilities Agreement"); and
WHEREAS, said parties wish to amend the Facilities
Agreement to provide for a delay in the construction and
completion of certain facilities specified therein, as a
result of delays in the expected in-service dates of
associated generating facilities; and
WHEREAS, said parties wish to amend the Facilities
Agreement to provide for a revision in the location of
metering specified therein, as a result of changes in
generation and transmission plans not foreseen at the
time of that Agreement; and
WHEREAS, said parties wish to amend the Facilities
Agreement to allow for the installation of substation
facilities not contemplated at the time of that
Agreement;
NOW, THEREFORE, in consideration of the premises and
of the mutual covenants herein set forth, the parties
agree as follows:
Section 1. The Facilities Agreement is hereby
amended by substituting the word "Gwynneville" for the
word "Carthage" whenever and wherever it appears in the
Facilities Agreement.
Section 2. The Facilities Agreement is hereby
further amended by amending Section 1.03 thereof to read:
"1.03 The parties shall coordinate their
respective construction programs and otherwise
cooperate, to the fullest extent practicable, toward
the achievement of the completion of all lines and
facilities covered by this agreement. Each party
shall use it best efforts to insure that such lines
and facilities are completed by the in-service dates
specified in the following Subsections 1.031 through
1.034, unless later dates are mutually agreed upon
by the parties hereto:
"1.031 That portion of the Sunnyside-
Columbus Line from Columbus to Point Z, known
as the Columbus-Gwynneville Line, shall be in
service by April 1, 1982. Completion of this
line shall be coordinated with the completion
of a line (not involved in this agreement) to
be built by Service Company from Gwynneville to
New Castle.
"1.032 The Petersburg-Cato Line shall be
in service by August 1, 1982.
"1.033 That portion of the Sunnyside-
Columbus Line extending from Point Z to
Sunnyside, known as the Gwynneville-Sunnyside
Line, shall be in service by August 1, 1985.
"1.034 That portion of the Gwynneville
Substation required for the operation of the
Gwynneville-Sunnyside Line, and that portion of
the Sunnyside Substation required for the
operation of that line shall both be in service
by August 1, 1985."
Section 3. The Facilities Agreement is hereby
further amended by amending Subsection 1.043 of Section
1.04 to read:
"1.043 At Service Company's Gwynneville
Substation, the necessary 345,000-volt metering
equipment for the purpose of monitoring flows
on the Sunnyside-Gwynneville Line, as described
in Article 3 hereof."
Section 4. The Facilities Agreement is hereby
further amended by modifying Subsection 3.012 of Section
3.01 to read:
"3.012 In respect of the Z
Interconnection Point, 345,000-volt metering
equipment owned by Indianapolis Company and
installed by Service Company at its Gwynneville
Substation at Indianapolis Company's expense,
for the purpose of monitoring the flows in the
Sunnyside-Gwynneville Line. Such metering
equipment shall include compensation as
provided in Section 3.06 hereof."
Section 5. The Facilities Agreement is hereby
further amended by amending Section 3.06 to read:
"3.06 The parties hereto understand and
agree that the establishment of metering point
Y as set forth in Subsection 3.013 hereof,
determines each party's responsibility for the
line losses incurred. With respect to metering
point Z, metering equipment shall be
compensated to fully compensate Indianapolis
Company for losses incurred on the Sunnyside-
Gwynneville Line. Such compensation shall
cease and Sunnyside-Gwynneville Line losses
shall become the responsibility of Indianapolis
Company at such time as Service Company has
fulfilled all of the following three
conditions: (i) 765,000-volt lines and
associated substations between Marble Hill and
Columbus, Marble Hill and Jefferson, and
Columbus and Gwynneville are placed in service;
(ii) the Jefferson-Greentown 765,000-volt line
covered by an agreement between Service Company
and Indiana and Michigan Electric Company, is
looped into Gwynneville and placed in service;
and (iii) the 765,000/345,000-volt
autotransformers at Gwynneville and a
765,000/230,000-volt autotransformer at
Columbus are placed in service."
Section 6. The Facilities Agreement is hereby
further amended by amending Subsection 10.011 of Section
10.01 to read:
"10.011 All facilities incident and
appropriate to the establishment of a Sunnyside-
Gwynneville Line and a Gwynneville-Columbus
Line including, without limitation: 345,000-
volt ultra-high-speed automatic reclosing
circuit breakers to average at least one per
termination unless otherwise agreed to;
appurtenant disconnecting and associated
equipment; protective relays and associated
equipment and such other items as may be
required and suitable for the control of such
Lines and for the coordination of such control
with terminal equipment at Indianapolis
Company's Sunnyside Substation; provided, that
Indianapolis Company shall provide Service
Company with one of the 345,000-volt ultra-high-
speed automatic reclosing circuit breakers and
equipment appertaining thereto; and shall pay
the cost of installing the same upon receipt
and approval of an itemized statement
therefore."
Section 7. The Facilities Agreement is hereby
further amended by adding a new Section 10.04 to read:
"10.04 Service Company shall have the
right to install at its cost a 345,000/69,000-
volt transformer at the Gwynneville Substation,
tapped on Indianapolis Company's Gwynneville-
Columbus 345,000-volt line through a 345,000-
volt circuit switcher, together with such other
equipment as may be required and suitable for
the control of such substation and for the
coordination of such control with terminal
equipment at the remote ends of the connecting
lines; provided, that Indianapolis Company
shall have the right to approve the design of
such installation to determine that it will not
adversely affect the reliability and operation
of its Gwynneville-Columbus 345,000-volt line,
which approval shall not be unreasonably
withheld."
Section 8. Except as specifically amended by this
Amendment No. 1, the Facilities Agreement shall remain
the same and in full force and effect.
IN WITNESS WHEREOF, the parties have caused this
agreement to be duly executed as of the date first above
written.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Zane G. Todd
Zane G. Todd, Chairman of the
Board
PUBLIC SERVICE COMPANY OF INDIANA, INC.
By /s/ Hugh A. Barker
Hugh A. Barker, Chairman
AMENDMENT NO. 2
TO
FACILITIES AGREEMENT
Dated as of August 16, 1977
Between
PUBLIC SERVICE COMPANY OF
INDIANA, INC.
and
INDIANAPOLIS POWER & LIGHT COMPANY
Dated as of October 1, 1984
This AMENDMENT NO. 2, dated as of the 1st day of October,
1984 between Public Service Company of Indiana, Inc.
(Service Company), an Indiana Corporation, and
Indianapolis Power & Light Company (Indianapolis
Company), an Indiana Corporation, and hereafter called
"the parties",
WITNESSETH THAT:
WHEREAS the parties entered into a Facilities Agreement
dated as of August 16, 1977 which Agreement was last
modified on June 1, 1981 (said Facilities Agreement, as
so modified, being herein called the "1977 Agreement");
and
WHEREAS the parties desire to modify the 1977 Agreement,
as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein set forth, the parties hereto
agree as follows:
SECTION 1 Article 1, Subsection 1.033 of Section 1.03 of
the 1977 Agreement is amended to read:
1.033 That portion of the Sunnyside-Columbus
Line extending from Point Z to Sunnyside, known as
the Sunnyside-Gwynneville Line, shall be in service
by February 1, 1986.
SECTION 2. Article 1, Subsection 1.043 of Section 1.04
of the 1977 Agreement is amended to read:
1.043 At said Sunnyside Substation, the
necessary 345,000-volt metering equipment for the
purpose of monitoring flows in the Sunnyside-
Gwynneville Line, as described in Article 3 hereof.
SECTION 3. Article 3, Subsection 3.011 of Section 3.01
of the 1977 Agreement is amended to read:
3.011 Should generation and/or transmission
developments of the parties affect losses, location
of the metering shall be reviewed.
SECTION 4. Article 3, Subsection 3.012 of Section 3.01
of the 1977 Agreement is amended to read:
3.012 In respect of the X Interconnection
Point, 345,000-volt metering equipment owned and
installed by Indianapolis Company at Indianapolis
Company's Sunnyside Substation for the purpose of
monitoring the flows in the Sunnyside-Gwynneville
Line. Such metering equipment shall be capable of
being compensated.
SECTION 5. Article 3, Section 3.06 of the 1977 Agreement
is amended to read:
3.06 The parties hereto understand and agree
that the establishment of the metering points as set
forth in Section 3.01 hereof determines each party's
initial responsibility for the line losses incurred
between such metering points.
SECTION 6. Except as hereinabove modified and amended,
all the terms and conditions of the 1977 Agreement shall
remain in full force and effect.
SECTION 7. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the
respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed by their duly authorized
officers.
PUBLIC SERVICE COMPANY OF INDIANA, INC.
By /s/ Darrell V. Menscer
Darrell V. Menscer, President
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Robert W. Hill
Robert W. Hill
AMENDMENT NO. 3
TO
FACILITIES AGREEMENT
Dated as of August 16, 1977
Between
PSI ENERGY, INC.,
Formerly named PUBLIC SERVICE COMPANY OF INDIANA, INC.,
and
INDIANAPOLIS POWER & LIGHT COMPANY
Dated as of June 1, 1992
This AMENDMENT NO. 3, dated as of the first day of
June 1992, between Indianapolis Power & Light Company
(hereinafter called "Indianapolis Company" or a "Party"),
an Indiana Corporation, and PSI Energy, Inc., formerly
named Public Service Company of Indiana, Inc.
(hereinafter called "Service Company" or a "Party"), an
Indiana Corporation. (Indianapolis Company and Service
Company are hereinafter sometimes called "Parties".)
WITNESSETH THAT:
WHEREAS the parties entered into a Facilities Agreement,
dated as of August 16, 1977, which Agreement was last
modified on October 1, 1984 (said Facilities Agreement,
as so modified, being herein called the "1977
Agreement"); and
WHEREAS the parties desire to modify the 1977 Agreement,
as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants set forth, the Parties hereto agree as
follows:
SECTION 1. Article 1, Section 1.02 is hereby amended by
adding a new Subsection 1.025 to read:
"1.025 'Patriot Line' means the 345,000-volt line to
be constructed by Indianapolis Company which is to extend
from Indianapolis Company's Patriot Station located in
Southeastern Indiana to Service Company's Gwynneville
Substation as defined in Subsection 1.023 hereof."
SECTION 2. Article 3, Section 3.01 is hereby amended by
adding a new Subsection 3.014 to read:
"3.014 In respect of the Z Interconnection Point,
345,000-volt, metering equipment owned by Indianapolis
Company and installed at Service Company's Gwynneville
Substation for the purpose of monitoring the flows in the
Patriot Line."
SECTION 3. Article 10 is hereby amended by adding a new
Section 10.05 and Subsection 10.051 to read:
"10.05 Indianapolis Company shall have the right to
have Service Company construct or cause to be constructed
at Indianapolis Company's cost the Patriot Line
substation facilities at Service Company's Gwynneville
Substation, consisting of the following described
facilities:
10.51 All facilities, owned and maintained by
Indianapolis Company and operated by Service Company,
incident and appropriate to the establishment of the
Patriot Line including, without limitation: one-345,000-
volt ultra-high-speed automatic reclosing circuit breaker
connected in a ring bus arrangement as shown in Appendix
B.; appurtenant disconnecting and associated equipment;
protective relays and associated equipment and such other
items as may be required and suitable for the control and
monitoring of the Patriot Line and for the coordination
of such control with terminal equipment at Indianapolis
Company's Patriot Plant; provided that (1) Indianapolis
Company shall have the right to provide all required
equipment to Service Company; (2) Service Company shall
have the right to approve all designs and facilities
provided; (3) Indianapolis Company shall pay all facility
costs as authorized by Indianapolis Company and incurred
by Service Company including engineering, review, design,
procurement and installation, upon project completion and
the receipt and approval of an itemized statement
therefor; and (4) Use of either Party's facilities within
rating(s) for power flows within Gwynneville Substation
shall not obligate either Party whatsoever; given that
system studies indicated no adverse effects on the
operation of the Gwynneville Substation, Service
Company's System or Indianapolis Company's System, which
all said approval shall not be unreasonably withheld."
SECTION 4. Except as hereinabove modified and amended,
all the terms and conditions of the 1977 Agreement shall
remain in full force and effect.
SECTION 5. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the
respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused
this agreement to be executed by their duly authorized
Officers.
PSI ENERGY, INC.
(Service Company)
an Indiana Corporation
By /s/ Larry E. Thomas
Larry E. Thomas
Senior Vice President and
Chief Operations Officer
ATTEST:
By /s E. Renae Conley
E. Renae Conley
Assistant Secretary
INDIANAPOLIS POWER & LIGHT
COMPANY,
(Indianapolis Company)
an Indiana Corporation
By /s/ Michael M. Minter
Michael M. Minter
Senior Vice President
Planning and Engineering
ATTEST:
By /s/ Marcus E. Woods
Marcus E. Woods, Secretary
APPENDIX B
GWYNNEVILLE SUBSTATION
Z - INTERCONNECTION POINT
(ADDITION OF PATRIOT LINE TO SERVICE
COMPANY'S GWYNNEVILLE SUBSTATION)
Diagram showing one-345,000-volt ultra-high-speed
automatic reclosing circuit breaker connected in a ring
bus arrangement.
KEY
IPL - Indianapolis Power & Light
PSI - PSI Energy
EXHIBIT 10.7
INTERCONNECTION AGREEMENT
Between
INDIANAPOLIS POWER & LIGHT COMPANY
And
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
For
Interchange Wholesale Sales and Purchases under
Emergency Service, Energy Transfer, Interchange Power,
Short Term Power, Limited Term Power (Firm), and
Diversity Power Schedules
Dated as of December 1, 1981
0.01 THIS AGREEMENT, dated as of the 1st day of December, 1981,
between INDIANAPOLIS POWER & LIGHT COMPANY ("IPL"), and HOOSIER ENERGY
RURAL ELECTRIC COOPERATIVE, INC. ("Hoosier"), both Indiana corporations:
WITNESSETH:
0.02 WHEREAS, IPL and Hoosier each owns electrical facilities and is
engaged in the generation, transmission, distribution, and sale of
electric power and energy in Indiana; and
0.03 WHEREAS, IPL and Hoosier desire that certain 161,000-volt and
138,000-volt transmission line facilities be provided and built so as to
establish a 138,000-volt interconnection between the IPL system and the
Hoosier system; and
0.04 WHEREAS, IPL and Hoosier desire to avail themselves of the mutual
benefits and advantages to be realized by interconnected systems
operation through such 138,000-volt interconnection; and
0.05 WHEREAS, the parties desire to fix the terms and conditions upon
which such interconnection shall be provided and built and upon which the
furnishing of interconnection services shall be effected;
0.06 NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein set forth, the parties agree as follows:
ARTICLE 1
PROVISIONS FOR AND CONTINUITY OF INTERCONNECTION OPERATION
Facilities To Be Provided By Hoosier
1.01 Hoosier shall provide, own, and install, or cause to be installed,
the following described facilities:
1.011 A 138,000-volt single circuit transmission line
approximately one mile in length, constructed with aluminum
conductors not less than 795 MCM in size, to extend in a generally
northeasterly direction from the existing switchyard, located at
Hoosier's Ratts Generating Station ("Ratts"), to IPL's Petersburg
Station (the "Ratts-Petersburg Line")
1.012 At Ratts, a 161,000-138,000-volt autotransformer, including
facilities essential to the protection of line and station
equipment, and such equipment on the autotransformer necessary to
attain a 200 MVA rating.
1.013 At Ratts, the necessary terminal equipment, including
facilities essential to the protection of line and station
equipment.
1.014 At Ratts and other suitable locations, such communication,
telemetering, and load control facilities as shall hereafter be
determined by the parties as necessary for the proper and efficient
interconnected operation of the parties' systems.
Facilities To Be Provided By IPL
1.02 IPL shall provide, own, and install, or cause to be installed, the
following described facilities:
1.021 At IPL's Petersburg Station ("Petersburg"), the necessary
terminal equipment, including facilities essential to the
protection of line and station equipment.
1.022 At Petersburg, replacement of certain 138,000-volt equipment
necessary to provide proper coordination and protection of line and
station equipment consistent with sound engineering practices.
1.023 At Petersburg, a new terminal for the existing line to
Southern Indiana Gas and Electric Company's Dubois line, together
with necessary protection, communication, metering, and load
control facilities essential to the protection of line and station
facilities.
1.024 At Petersburg and other suitable locations, such communication,
telemetering, and load control facilities as shall hereafter be
determined by the parties as necessary for the proper and efficient
interconnected operation of the parties' systems.
1.025 At Petersburg, suitable 138,000-volt metering equipment as
described in Section 4.02 below.
1.03 IPL shall arrange with Southern Indiana Gas and Electric Company
for the relocation and retermination of a portion of the Petersburg-Dubois
138,000-volt line owned by Southern Indiana Gas and Electric Company to a
new line terminal at Petersburg as described in Section 1.023 hereof.
1.04 In consideration of the provisions of this agreement, the
parties agree that within six (6) calendar months after the
Interconnection Date as defined in Article 9, payments will be made as
follows:
1.041 IPL will keep an accurate accounting of its cost of
establishing the facilities specified in Article 1.02 herein, and
the cost of, or payments to Southern Indiana Gas and Electric
Company for, the relocation of facilities in Article 1.03 hereof
("IPL Investment"). Such costs shall include:
A. The cost of material and labor for installing the facilities
specified in Subsections 1.021, 1.023, 1.024 and 1.025
herein, including all transportation, stores, interest, and
engineering expenses and proper apportionments.
B. The cost of material and labor for removing and replacing
three line breakers and associated equipment specified in
Subsection 1.022 herein, including all transportation,
stores, interest, and engineering expenses, and proper
apportionments.
1.042 Hoosier will keep an accurate accounting of its cost of
establishing the facilities specified in Article 1.01 hereof
("Hoosier Investment"). Such costs shall include:
A. The material and labor cost of all new equipment required for
the establishment of facilities herein specified, including
all transportation, stores expenses, and proper apportionments.
B. The installation labor and original purchase cost of the
autotransformer specified in Subsection 1.012 including
engineering and proper apportionments.
1.043 If the IPL Investment exceeds one-third (1/3) of the sum of
IPL Investment and Hoosier Investment ("Total Investment"), Hoosier
agrees to pay IPL the amount by which IPL Investment exceeds
one-third (1/3) of the Total Investment.
If the Hoosier Investment exceeds two-thirds (2/3) of the Total
Investment, IPL agrees to pay Hoosier the amount by which Hoosier
Investment exceeds two-thirds (2/3) of the Total Investment.
Interconnection Point
1.05 The Interconnection Point shall be that point at Petersburg where
the terminal facilities provided therefor by IPL shall be connected to
the Petersburg-Ratts Line.
Facilities Obligations Common To The Parties
1.06 Subject to accidents, strikes, litigation, delays in securing
delivery of equipment or other similar or dissimilar causes beyond the
reasonable control of the parties, including the procuring of the
necessary materials and labor and the obtaining of all the necessary
governmental authorizations and permits approving the use of such labor
and materials, the installation of the facilities to be provided by the
parties, as hereinabove described, shall be completed and in service on
or before June 1, 1982, (the "In-Service Date"). Should said facilities
be delayed beyond said date due to any of the aforesaid causes, it shall
nevertheless be completed as soon thereafter as practicable.
1.07 The parties shall cooperate to assure the maximum practicable
coordination of design and installation of the facilities to be installed
by each of them with new and existing facilities of the other. Each
party agrees to promptly notify the other party of any potential delay in
the In-Service Date.
Synchronous Operation
1.08 When the installation of the facilities as provided for under this
Article 1 is completed, the systems of the parties shall be connected at
the Interconnection Point and thereafter throughout the duration of this
agreement, subject to the provisions of this Section 1.08 and Section
1.09, such systems shall be operated in continuous synchronism through
such line. If synchronous operation of the systems through such line
becomes interrupted either manually or automatically because of reasons
beyond the control of either party or because of scheduled maintenance
that has been agreed to by both parties, the parties shall cooperate to
remove the cause of such interruption as soon as practicable and restore
such line to normal operating condition. Neither party shall be
responsible to the other party for any damage or loss of revenue caused
by any such interruption.
1.09 The parties hereto agree that either party may interrupt
synchronous operation through this interconnection if either determines
that its facilities may be damaged due to excessive loadings, and such
loadings may be reduced or alleviated by such interruption. If such
interruption occurs, the parties shall cooperate to remove the cause of
such loadings as soon as practicable and restore such interconnection to
normal operating condition. Neither party shall be responsible to the
other party for damage or loss of revenue caused by such interruption.
The parties hereto further agree to study and negotiate the installation,
ownership, and cost of any additional equipment necessary to effect a
long term solution to any such excessive loading herein described in the
event either party determines that this interconnection contributes to
the excess loading and requests such negotiation.
Maintenance of Equipment
1.10 The parties hereto shall each keep the lines, together with all
associated equipment and appurtenances, described in Article 1 hereof
that are located on their respective sides of the Interconnection Point
in a suitable condition of repair at all times, each at its own expense,
in order that said lines will operate in a reliable and satisfactory
manner and in order that reduction in the capacity of said lines will be
avoided to the extent practicable.
1.11 The parties hereto understand that IPL and Hoosier each now has its
transmission system interconnected with the electric transmission systems
of other electric utility companies and each has contracted for other
such interconnections and may hereafter during the term of this agreement
desire to make additional interconnections with such companies or with
other electric utility companies. Each such additional interconnection
with another electric utility system shall be discussed between the
parties and if, in the opinion of either party, the establishment of such
interconnection will cause transfer of power or reactive power through
the system of either party during normal parallel operation to or from
the systems with which either party proposes to add an interconnection to
its system, then before any such additional interconnection is made,
joint load studies shall be carried on to determine the effect which such
interconnection will have on the transmission systems of the parties. If
as the results of such studies it is the reasonable opinion of one of the
parties that the proposed additional interconnection would cause
unreasonable transfers of power or reactive power through the electric
transmission system of such party or otherwise impair the ability of such
party to carry out its own obligations, then the party proposing such
additional interconnection shall, before such proposed interconnection is
placed in service:
1.111 agree to compensate the other party for the use of that
portion of its facilities determined to be dedicated to the new
situation caused by the establishment of the proposed interconnection;
and/or
1.112 install and/or remove such equipment as may be reasonably
necessary to avoid such unreasonable transfers of power or reactive
power; or
1.113 abandon the establishment of such additional interconnection.
ARTICLE 2
SERVICES TO BE RENDERED
2.01 It is the purpose of the parties hereto to realize on an equitable
basis, all benefits practicable to be effected through coordination in
the operation and development of their respective systems. It is
understood by the parties that such benefits may be realized under the
stated terms and conditions of the following interconnection
services:
A. the furnishing of mutual emergency and standby assistance, in
accordance with Service Schedule A annexed hereto;
B. the transfer of electric energy through the transmission system of
one party for the benefit of the other, in accordance with Service
Schedule B annexed hereto;
C. the interchange, sale, and purchase of energy to effect operating
economies, in accordance with Service Schedule C annexed hereto;
D. the sale and purchase of short-term electric power and energy
available on the system of one party and needed on the system of
the other, in accordance with Service Schedule D annexed hereto;
E. the sale and purchase of limited term power and energy available on
the system of one party and needed on the system of the other, in
accordance with Service Schedule E annexed hereto;
F. the sale and purchase of diversity power and energy, in accordance
with Service Schedule F annexed hereto.
In furtherance of such purpose the parties hereto shall create an
Operating Committee as provided in Article 7 hereof.
2.02 Inasmuch as the specific services to be rendered in furtherance of
such purpose will vary, and the terms and conditions applicable to such
services may require modification from time to time while this Agreement
is in effect, it is intended that such specific services and the terms
and conditions applicable thereto be set forth in service schedules
mutually agreed upon from time to time between the parties. Such service
schedules, until and unless changed by such mutual agreement, shall be
those provided by Section 2.03 hereof, each of which, while in effect,
shall be deemed to be a part of this agreement. Nothing contained herein
shall be construed as affecting in any way the right of IPL in furnishing
service under these rate schedules to unilaterally make application to
the Federal Energy Regulatory Commission ("FERC") for a change in rates
under Section 205 of the Federal Power Act and pursuant to the FERC's
Rules and Regulations promulgated thereunder. Nothing contained herein
shall be construed as affecting in any way the right of Hoosier in
furnishing service under these rate schedules to unilaterally make
application to the Public Service Commission of Indiana for a change in
rates in accordance with the Public Service Commission Act and pursuant
to such Commission's Rules and Regulations promulgated thereunder.
2.03 The respective service schedules shall be designated:
I. Service Schedule A - Emergency Service
II. Service Schedule B - Energy Transfer
III. Service Schedule C - Interchange Power
IV. Service Schedule D - Short Term Power
V. Service Schedule E - Limited Term Power (Firm)
VI. Service Schedule F - Diversity Power
such service schedules having been agreed upon between the Parties
hereto, are attached hereto, made a part hereof, and marked Exhibits I,
II, III, IV, V, and VI, respectively.
2.04 Nothing in this Agreement shall require either party hereto to
purchase power or energy from a third party and resell it to the other
party hereto at a price less than the total cost of supplying such
purchased power or energy.
ARTICLE 3
SERVICE CONDITIONS
Control of System Disturbance
3.01 The parties hereto shall maintain and operate their respective
systems in accordance with sound operating practice so as to minimize the
likelihood of disturbance originating in either system which might cause
impairment to the service of the system of the other party or of any
system interconnected with the system of the other party.
Control of Kilovar Exchange
3.02 It is intended that neither party hereto shall be obligated to
deliver kilovars for the benefit of the other party; also that neither
party shall be obligated to receive kilovars when to do so may introduce
objectionable operating conditions on its system. The Operating
Committee shall be responsible for the establishment from time to time of
operating procedures and schedules, in respect of carrying kilovar loads
by one system for the other in order to secure adequate service and
economical use of the facilities of both systems and in respect of proper
charges, if any, for the use of facilities carrying kilovar loads. In
discharging such duties the Operating Committee shall recognize that in
the transmission and delivery of power and energy hereunder the carrying
of kilovar loads by either of the parties, in harmony with sound
engineering principles of transmission operation with their systems
interconnected, is subject to numerous variables contingent upon loading
and operating conditions existing simultaneously on both of their
systems. The operating procedures and schedules so set up by the
Operating Committee shall be in accord with such principles and shall
require each of the parties to carry kilovar loads at such times and in
such amounts as will be equitable to both parties.
Control of Unscheduled Power Deliveries
3.03 The parties hereto shall exercise reasonable foresight in carrying
out all matters related to the providing and operating of their
respective electric power resources so as to minimize to the extent
practicable deviations between actual and scheduled deliveries of
electric power and energy between their systems. The parties shall
provide and install on their respective systems such communication and
telemetering facilities as are essential to so minimize such deviations;
and, in developing and executing operating procedures that will enable
the parties to avoid, to the extent practicable, deviations from
scheduled deliveries, shall fully cooperate with each other and with
third parties whose systems are either directly or indirectly
interconnected with the systems of the parties and who of necessity,
together with the parties, must unify their efforts cooperatively to
achieve effective and efficient interconnected operation. The parties
recognize, however, that, despite their best efforts to prevent the same,
unscheduled deliveries of electric energy from one party to the other may
occur. In such events, electric energy delivered hereunder shall be
settled for either by the return of equivalent energy or by payment of
the out-of-pocket cost (such cost being at the delivery point or points,
set forth in Section 4.01 of this agreement, taking into account
electrical losses incurred from the source or sources of such energy to
said delivery point or points) of electric energy delivered hereunder to
the supplying party plus ten percent of such cost. If equivalent energy
is returned, it shall be returned at times when the load conditions of
the party receiving it are substantially equivalent to the load
conditions of such party at the time the energy for which it is returned
was delivered or, if such party elects to have equivalent energy returned
under different conditions, it shall be returned in such amounts, to be
agreed upon by the Operating Committee, as will compensate for the
difference in conditions.
ARTICLE 4
DELIVERY POINTS, METERING POINTS, AND METERING
Delivery Points
4.01 All electric energy delivered under this agreement shall be of the
character commonly known as three-phase sixty-cycle energy, and shall be
delivered at the Interconnection Point, as defined under Section 1.05
hereof, at a nominal voltage of 138,000-volts and at such other points
and voltages as may be agreed upon by the parties in a written amendment
hereto.
Metering Points
4.02 Electric Power and energy supplied under this agreement shall be
measured by suitable metering equipment, having appropriate voltage
rating, to be installed, owned and maintained at the Metering Point as
hereinafter defined; and at such other points, voltages, and ownership as
may be agreed upon by the parties in a written amendment hereto:
4.021 At the Interconnection Point specified in Section 1.025
above, by 138,000 volt metering equipment to be installed, owned
and maintained by IPL. ("Metering Point")
Metering
4.03 Suitable metering equipment at the metering point provided in
Section 4.02 above shall include electric meters, potential and current
transformers, and such other appurtenances as shall be necessary to give
for each direction of flow the following quantities:
A. a continuous automatic graphic record of both kilowatts and
kilovars,
B. an automatic record of the kilowatthours for each clock hour, and
C. a continuous integrating record of the kilowatthours.
4.04 Unless otherwise provided for in this agreement, measurements of
electric energy for the purpose of effecting settlements under this
agreement shall be made by standard types of electric meters installed
and maintained, by the owner at the metering point provided for in
Section 4.02 hereof. The timing devices of all meters having such
devices shall be maintained in time synchronism as closely as
practicable. The meters shall be sealed and the seals shall be broken
only upon occasions when the meters are to be tested or adjusted. For
the purpose of checking the records of the metering equipment installed
by one of the parties hereto as hereinabove provided, the other party
hereto shall have the right to install check metering equipment at the
aforesaid metering points. Check metering equipment so installed by one
party on the premises of another party, unless otherwise provided for in
this agreement, shall be owned and maintained by the party installing
such equipment. Upon termination of this agreement, the party owning
such check metering equipment shall remove it from the premises of the
other party. Authorized representatives of both parties shall have
access at all reasonable hours to the premises where the meters are
located and to the records made by the meters.
4.05 The aforesaid metering equipment shall be tested by the owner at
suitable intervals and its accuracy of registration maintained in
accordance with good practice. On request of either party hereto, a
special test may be made at the expense of the party requesting such
special test. Representatives of both parties shall be afforded the
opportunity to be present at all routine or special tests and upon
occasions when any readings for purposes of settlements hereunder are
taken from meters not bearing an automatic record.
4.06 If, at any test of metering equipment an inaccuracy shall be
disclosed exceeding two percent, the account between the parties hereto
for service theretofore delivered shall be adjusted to correct for the
inaccuracy over the shorter of the following two periods: (1) for the
thirty-day period immediately preceding the day of the test or (2) for
the period that such inaccuracy may be determined to have existed.
Should the metering equipment provided for in Section 4.03 hereof at any
time fail to register, the electric power and energy delivered during
such failure shall be determined from the check meters, if installed, or
otherwise shall be determined from the best available data.
ARTICLE 5
RECORDS AND STATEMENTS
Records
5.01 In addition to records of the metering provided for in Article 4
hereof, the parties hereto shall keep, in duplicate, such other records
as may be needed to afford a clear history of the various deliveries of
electric energy made, and of the clock-hour integrated demands in
kilowatthours delivered, by one party to the other. In maintaining such
records, the parties shall effect such segregations and allocations of
demands and electric energy delivered into classes representing the
various services and conditions as may be needed to effect settlements
under this agreement. The originals of all such records shall be
retained by the party keeping the records and the duplicates shall be
delivered monthly to the other party, unless the parties agree in writing
upon a different time interval for such delivery.
Statements
5.02 As promptly as practicable after the end of each calendar month,
the parties hereto shall cause to be prepared a statement setting forth
the electric power and energy transactions between them during such month
in such detail and with such segregations as may be needed for operating
records or for settlements under this agreement.
ARTICLE 6
BILLINGS AND PAYMENTS
6.01 All bills for amounts owed by one party hereto to the other shall
be due and payable on the fifteenth day of the month next following the
month in which the service was provided, or on the tenth day following
receipt of a bill therefor, whichever is later. Interest on unpaid
amounts shall accrue at the annual rate of 1/2 percent above the prime
commercial lending rate established from time to time by Indiana National
Bank at Indianapolis, Indiana and is chargeable from the due date of the
bill to the date of payment. The term "month" shall mean a calendar
month for the purpose of settlements under this agreement.
ARTICLE 7
OPERATING COMMITTEE
7.01 To coordinate the operation of their respective generating,
transmission and substation facilities, in order that the advantages to
be derived hereunder may be realized by the parties hereto to the fullest
practicable extent, the parties shall establish a committee of authorized
representatives to be known as the Operating Committee. Each of the
parties shall designate in writing delivered to the other party, the
person who is to act as its representative on said committee (and the
person or persons who may serve as alternates whenever such
representative is unable to act). Each of such representatives and
alternates shall be persons familiar with the generating, transmission,
and substation facilities of the system of the party he represents, and
each shall be fully authorized (1) to cooperate with the other
representative (or alternates) and (2) to determine and agree from time
to time, in accordance with this agreement and with any other relevant
agreements then in effect between the parties, upon the following:
7.011 All matters pertaining to the coordination of the maintenance
of generating and transmission facilities of the parties hereto.
7.012 All matters pertaining to the control of time, frequency,
energy flow, kilovar exchange, power factor, voltage, and other
similar matters bearing upon the satisfactory synchronous operation
of the systems of the parties.
7.013 Such other matters not specified herein in respect of which
cooperation, coordination, and agreement as to quantity, time,
method, terms and conditions are necessary to the efficient
operation of the respective systems of the parties to the end that
the intent and purpose of this agreement shall be realized by the
parties to the fullest extent practicable.
7.02 For the purpose of inspection and reading of meters, checking of
records, and all other pertinent matters, said representatives or their
alternates shall have the right of access at any reasonable time to all
facilities and equipment of the parties hereto used or to be used in the
performance of this agreement.
ARTICLE 8
CONTINUITY OF SERVICE
8.01 Each party hereto shall exercise reasonable care and foresight to
maintain continuity of service as provided under this agreement, but
neither party shall be considered in default in respect of any obligation
hereunder if prevented from fulfilling such obligation by reason of
uncontrollable forces. The term "uncontrollable forces" shall be deemed
for the purposes of this agreement to mean earthquake, storm, lightning,
flood, backwater caused by flood, fire, epidemic, accident, failure of
facilities, war, riot, civil disturbances, strike, labor disturbances,
restraint by court or public authority, or other similar or dissimilar
causes beyond the control of the party affected thereby, which causes
such party could not have avoided by exercise of reasonable care. A
party unable to fulfill any obligation by reason of uncontrollable forces
shall immediately notify the other party of such disability and shall use
its best efforts to remove such disability with reasonable dispatch.
ARTICLE 9
DURATION OF AGREEMENT
9.01 This agreement shall become effective at the date hereof, subject
to the filing requirements of FERC, or any other regulatory authority
having jurisdiction and to approval of any such authority, if required,
and shall continue in effect for a period of ten (10) consecutive years
commencing upon the Interconnection Date, as hereinafter defined, (the
"Initial Term"), and thereafter for successive terms of three (3) years
each unless and until terminated as provided in Section 9.02 hereof; the
Interconnection Date shall be the first day of the calendar month next
following the day, or on such day if it should be the first day of a
calendar month, upon which the systems of the parties are connected at
the Interconnection Point set forth in Article 1 hereof. As soon as
practicable following the Interconnection Date, the parties, as a matter
of record, shall exchange letters confirming such date as the Interconnection
Date.
9.02 This agreement and any amendments pertaining thereto shall not
become effective until approved by the Rural Electrification Administration.
9.03 Either party upon at least thirty months' prior written notice to
the other, may terminate this agreement after the expiration of the
Initial Term or any successive term hereof; provided, that this agreement
shall not be deemed to have terminated until all prior commitments for
sale or purchase of power under this agreement have been fulfilled.
ARTICLE 10
ARBITRATION
10.01 In the event a disagreement between the parties hereto has reached
an impasse between the parties hereto with respect to (A) any matter
herein specifically made subject to arbitration, (B) any question of
operating practice involved in the deliveries of power and energy herein
provided for, (C) any question of fact involved in the application of the
provisions of this agreement, or (D) the interpretation of any provision
of this agreement, the disputed matter upon demand of either party, shall
be submitted to arbitration in the manner hereinafter provided. An offer
of such submission to arbitration shall be a condition precedent to any
right to institute proceedings at law or in equity concerning such matter.
10.02 The party hereto calling for arbitration shall serve notice in
writing upon the other party hereto, setting forth in detail the subject
or subjects to be arbitrated, and the parties thereupon shall endeavor to
agree upon and appoint one person to act as sole arbitrator. If the
parties fail so to agree within a period of fifteen days from the receipt
of the original notice, the party calling for the arbitration shall, by
written notice to the other party, give notice for appointment of a board
of arbitrators skilled with respect to matters of the character involved
in the disagreement, naming one arbitrator in such notice. The other
party shall, within ten days after the receipt of such notice, appoint a
second arbitrator, and the two arbitrators so appointed shall choose and
appoint a third arbitrator. In case such other party fails to appoint an
arbitrator within said ten days, or in case the two so appointed fail for
ten days to agree upon and appoint a third, the party calling for the
arbitration, upon five days' written notice delivered to the other party,
shall apply to the senior Judge, in point of service, of the United
States District Court for the Southern District of Indiana, for
appointment of the second or third arbitrator, as the case may be.
10.03 The sole arbitrator, or the board of arbitrators, shall afford
adequate opportunity to the parties to present information with respect
to the matters submitted for arbitration and may request further
information from either or both parties. The findings and award of the
sole arbitrator or of a majority of the board of arbitrators shall be
final and conclusive with respect to the question or questions submitted
for arbitration and shall be binding upon the parties; provided, that
such findings and award shall not in any way vary the expressed terms of
this agreement or in any way extend the expressed scope and intent
hereof. Each party shall pay for the services and expenses of the
arbitrator appointed by or for it, if there is a board of arbitrators.
All other costs incurred in connection with the arbitration shall be
divided in equal parts and paid by the parties accordingly, unless the
award shall specify a different division of such costs.
ARTICLE 11
LIABILITY
11.01 Each party hereto shall hold harmless the other party hereto from
and against any liability, loss, cost, damage and expense because of
injury or damage to persons or property resulting from, or arising out of
the use of its own facilities or the production or flow of electric
energy by or through such facilities, except when such injury or damage
is due to the negligence of the other party.
ARTICLE 12
TAXES
12.01 If at any time during the term hereof there should be levied or
assessed against either of the parties hereto any direct tax by any
taxing authority on the capacity or energy (or both) generated,
purchased, sold, transmitted, interchanged, or exchanged under this
agreement, which tax is in addition to or different from the forms of
direct taxes being levied or assessed on the date of this agreement, and
such direct tax results in increasing the cost to either or both parties
hereto of carrying out the provisions of this agreement, then the rate
and charges for capacity and energy (or both) furnished hereunder shall
be increased automatically to the extent necessary to make adequate and
equitable allowance for such tax.
ARTICLE 13
NOTICES
13.01 Except as otherwise provided herein, any notice given to either
party hereto by the other under any of the provisions of this agreement,
shall be in writing unless otherwise specifically provided, and shall be
deemed to be duly delivered when the same is either personally delivered
or deposited in the United States mail, postage prepaid and properly
addressed to the Chief Executive Officer of IPL, in the case of a notice
to be given IPL, or to the General Manager of Hoosier, in the case of a
notice to Hoosier.
13.02 Any notice, request or demand pertaining to matters of an
operating nature may be served in person or, by ordinary mail, messenger,
telephone, or telegraph, as circumstances dictate, to an Operating
Committee representative or alternate; provided, that should the same not
be written then confirmation thereof shall be made in writing as soon as
practicable thereafter upon request of the party being served.
ARTICLE 14
REGULATORY AUTHORITIES
14.01 This agreement is made subject to the authority of FERC or any
other governmental regulatory agency having jurisdiction in the premises
and if any of the terms and conditions hereof are altered or made
impossible of performance by order, rule, or regulation of any such
regulatory agency, and the parties hereto are unable to agree upon a
modification of such terms and conditions that will satisfy such order,
rule, or regulation, then neither party shall be liable to the other for
failure thereafter to comply with such terms and conditions; provided,
that if either party deems that the failure of such performance results
in a substantial breach of this agreement, this agreement may be
terminated forthwith upon notice.
ARTICLE 15
WAIVERS
15.01 Any waiver by either party hereto of its rights under this
agreement, shall not be deemed a waiver with respect to any subsequent
default or other matter. Any delay, less than the statutory period
limitation, in asserting or enforcing any right under this agreement,
shall not be deemed a waiver of such rights.
ARTICLE 16
CONFLICTS WITH OTHER AGREEMENTS
16.01 Hoosier hereby represents to IPL that it has absolute authority to
enter into this agreement; that Hoosier's agreement with Public Service
Company of Indiana, Inc. and Southern Indiana Gas and Electric Company,
dated as of April 15, 1977, as amended, (the "Statewide Agreement") and
Hoosier's agreement with Big Rivers Electric Corporation, the City of
Henderson, Kentucky, and Southern Illinois Power Cooperative, dated as of
April 1, 1968, as amended, (the "KII Agreement") is not in conflict with,
and will not prevent Hoosier from performing its obligations under, this
agreement; and that Hoosier has done all things required of it under the
Statewide and KII Agreements as a condition to Hoosier's entry into this
agreement with IPL.
16.02 IPL hereby represents to Hoosier that it has absolute authority to
enter into this agreement; that IPL's agreement with Public Service
Company of Indiana, Inc., Kentucky Utilities Company and East Kentucky
Power Cooperative Inc., dated as of July 9, 1971, as amended, (the "KIP
Agreement") is not in conflict with, and will not prevent IPL from
performing its obligations under this agreement; and that IPL has done
all things required of it under, the KIP Agreement as a condition to
IPL's entry into this agreement with Hoosier.
ARTICLE 17
ENTIRE AGREEMENT CONTAINED HEREIN
17.01 This agreement contains the entire agreement between the parties
hereto in respect of the subject matter hereof.
ARTICLE 18
CONSTRUCTION OF AGREEMENT
18.01 This agreement shall be governed by and construed according to the
laws of the State of Indiana.
ARTICLE 19
ASSIGNMENT
19.01 This agreement shall inure to and bind upon the respective
successors and assigns of the parties hereto, but the assignment hereof
by either such party, shall not relieve the assigning party, without the
written consent of the other party, of any obligation to supply, or to
take and pay for, as the case may be, the services contracted for herein.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed by their respective duly authorized officers and their
respective corporate seals to be hereunto affixed as of the date first
above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Robert W. Hill
Robert W. Hill, President and Chief
Operating Officer
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
By /s/ Virgil E. Peterson
Virgil E. Peterson, Executive Vice President
and General Manager
EXHIBIT I
SERVICE SCHEDULE A
EMERGENCY SERVICE
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - SERVICES TO BE RENDERED
2.1 Subject to the provisions of subsection 2.2 of this Section 2, in
the event of a breakdown or other emergency in or on the system of either
party involving either sources of power or transmission facilities, or
both, impairing or jeopardizing the ability of the party suffering the
emergency to meet the loads of its system, the other party shall supply
to the party having the emergency such electric energy as the supplying
party is requested to deliver; provided, that neither party shall be
obligated to supply such emergency energy which, in the supplying party's
sole judgment, cannot be delivered without creating a hazard to or
economic burden upon its operations or without impairing or jeopardizing
the total load requirements of its system; and provided further, that
neither party shall be obligated to supply such emergency energy for a
period in excess of forty-eight consecutive hours during any single
emergency.
2.2 The parties recognize that the supply of electric energy as
provided for in subsection 2.1 of this Section 2 is subject to two
conditions which may preclude the delivery of such energy as so
provided:
(a) the party requested to deliver electric energy may be
suffering an emergency in or on its own system as described in said
subsection 2.1, or
(b) the system of the party of whom such request is made may be
delivering electric energy, under a mutual emergency interchange
agreement, to the system of another interconnected company which is
suffering an emergency in or on its system. Under conditions as cited
under (a) above, neither party shall be considered to be in default
hereunder if unable to comply with the provisions of said subsection 2.1.
Under conditions as cited under (b) above, neither party shall be
considered to be in default hereunder if it is unable to comply with the
provisions of said subsection 2.1 provided that the aforesaid
interconnected company has suffered said emergency in or on its system
prior to and within forty-eight hours of that of the other party hereto
and that, if requested by said other party, such delivery of electric
energy to said interconnected company shall be discontinued within
forty-eight hours following the start of such delivery, and a subsequent
delivery shall be made for a full forty-eight hour period to said other
party in accordance with the provisions of said subsection 2.1.
2.3 If at any time the record over a reasonably prior period shows
clearly that either of the parties has failed to deliver energy in
accordance with and subject to the provisions of subsection 2.1 and
subsection 2.2 of this Section 2, either party, by written notice given
to the other party, may call for a joint study by the parties of the
reserve generating capacity in and provided for their respective systems
and of their respective system transmission facilities affecting the
supply and delivery of power and energy under the Agreement. It shall be
the purpose of such study to determine the adequacy or inadequacy of
reserve generating capacity and transmission facilities being provided to
meet the requirements of the parties' respective systems, reflecting
obligations under the Agreement, and, if inadequate, the extent of the
burden that one party may be placing upon the other. If it should be
found that one party is placing an unreasonable burden upon the other,
the party causing such burden shall take such measures as are necessary
to remove the burden from the other party, or the parties shall enter
into such arrangements as shall provide for equitable compensation to the
party being burdened.
SECTION 3 - COMPENSATION
3.1 Emergency Energy shall be settled for, at the option of the
supplying party, either by payment or by return of equivalent energy.
3.2 If the supplying party opts to receive payment for Emergency Energy
delivered, the receiving party shall pay the supplying party the greater of:
3.21 110% of the out-of-pocket cost of supplying such Emergency
Energy that is generated from the supplying party's own
system, and, for energy purchased by the supplying party from
another system to supply any part of such Emergency Energy,
100% of the amount paid by the supplying party therefor plus
10% of that amount, not exceeding, however, 1.6 mills per
kilowatthour; or
3.22 30 mills per kilowatthour of such Emergency Energy
3.3 If the supplying party opts to receive equivalent energy for
Emergency Energy delivered, such equivalent energy shall be returned at
times when the load conditions of the party originally supplying
Emergency Energy are substantially equivalent to the load conditions of
such party that existed when the Emergency Energy was delivered or, if
such party elects to have equivalent energy returned under different
conditions, it shall be returned in such amounts and at such times as,
the Operating Committee agrees will compensate the original supplying
party, for the difference in conditions.
EXHIBIT II
SERVICE SCHEDULE B
ENERGY TRANSFER
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - TRANSFER ARRANGEMENT
2.1 In carrying out the interconnected operation of their respective
systems as provided for under the Agreement, energy being received by a
portion of one party's system from another portion of its system or to
the system of another interconnected company, may flow over the
transmission facilities of the other party as a natural result of the
physical and electrical characteristics of the interconnected network of
transmission lines to which the parties are connected. Such flow of
energy may occur during periods when conditions of system operation are
normal or may occur during periods of emergency caused by the failure of
either sources of power or transmission facilities, or both. In respect
to such flow of energy (hereinafter called "energy transfer") the parties
agree as follows:
2.11 Such energy transfer over their respective transmission
facilities shall be permitted whenever such transfer occurs;
provided, that such energy transfer shall not be of such
magnitude or duration as to affect adversely, or jeopardize
the ability of, the party over whose system such energy
transfers occur to render or accept service to or from
companies with which it now has, or at any time hereafter may
have contractual arrangements for the interchange of power or
energy.
2.12 The parties recognize that in carrying out the provisions of
this Service Schedule, the above described energy transfer,
either during periods when conditions of system operation are
normal or during periods of emergency, or both, may
eventually require the installation of additional
transmission facilities in order that such energy transfer
may be properly controlled to the end that the ability of the
party over whose system such energy transfers occur to meet
its own requirements, as described under 2.11 above, is not
affected adversely or jeopardized. In the event the need for
such additional transmission facilities becomes apparent to
either of the parties during any term of this Service
Schedule, upon written notice given by either party to the
other party and as soon as practicable following such notice,
the parties shall jointly reexamine conditions relating to
energy transfer. In such reexamination, if called for, the
parties shall agree upon such additional transmission
facilities as may be required to be installed, if any, and
upon an equitable basis for bearing the cost of installing,
maintaining and operating such facilities, if installed.
SECTION 3 - POWER AND ENERGY ACCOUNTING
3.1 The parties recognize that energy transfers as described under
Section 2 of this Service Schedule, except for such amounts of electrical
losses as may be incurred because of such energy transfers, are the
simultaneous acceptance and delivery of like amounts of power and energy
by and from the system of the party over whose system such energy
transfers occur. Power and energy associated with energy transfers,
including electrical losses associated therewith, shall be accounted for
each clock-hour as provided for under Article 5 of the Agreement. Proper
consideration to such electrical losses will be in accordance with the
manner agreed upon by the Operating Committee. It is understood by the
parties, however, that such electrical losses resulting from energy
transfers, to be taken as losses over and above the losses prevailing
under basic conditions agreed upon by the parties, shall be supplied
simultaneously by the party for whom such energy transfers are being
made. The parties agree that initially such basic conditions will be
established as those that exist when the scheduled net delivery between
the systems of the parties, and between their respective systems and the
systems of other interconnected companies, is zero kilowatts. It is
further understood that, from time to time, conditions may require the
establishment of different basic conditions for such purpose. Either
party by written notice given to the other party may call for a prompt
reexamination and reconsideration of matters pertinent to the
establishment of said basic conditions, whenever such reexamination
appears to be warranted, and the parties will thereupon agree to effect
such changes in the basic conditions, if any, that will equitably
compensate the parties for such losses. Should such reexamination be
required, a statement will be prepared by the parties which shall include
in detail the amounts of energy delivered and received by the parties
that are associated with energy transfer and the amounts of electrical
losses associated therewith.
EXHIBIT III
SERVICE SCHEDULE C
INTERCHANGE POWER
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the "Agreement")
shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - SERVICES TO BE RENDERED
Economy Energy
2.1 Either party may arrange to purchase from the other party electric
energy ("Economy Energy") when it is possible to effect a saving thereby
and, when, in the sole judgment of the supplying party, such energy is
available. Prior to each Economy Energy transaction, the amount of
energy, the time of its delivery, and the charge therefore shall be
determined by the parties. Receipt or delivery of Economy Energy may
also be arranged with other interconnected systems not parties to this
Agreement.
Non-Displacement Energy
2.2 It is recognized that occasions will arise when transactions under
subsection 2.1 above will be impracticable although a party may have
electric energy (herein called "Non-Displacement Energy") which it is
willing to make available from surplus capacity from its own system or
from outside sources, or both and which can be utilized advantageously
for short intervals by the other party. In such event, the party
desiring such receipt of energy shall notify the other party of the
extent to which it desires to obtain Non-Displacement Energy, and if the
other party, in its sole judgment, determines that Non-Displacement
Energy is available, schedules providing the periods and extent of use
shall be mutually agreed upon. Neither party shall be obligated to make
any Non-Displacement Energy available to the other.
SECTION 3 - COMPENSATION
Economy Energy
3.1 The charge for Economy Energy purchased by either party from the
other shall be based on the principle that the purchasing party shall pay
the out-of-pocket cost of the supplying party such energy and that the
resulting savings to the purchasing party shall be equally shared by both
parties.
3.2 When Economy Energy is obtained from or delivered to other
interconnected systems not signatories to this Agreement, payments shall
be based on the out-of-pocket cost of the supplying party or system
providing the energy and an allocation of the gross savings to be
realized. For such purpose, gross savings is defined as the difference
between the out-of-pocket cost of the purchasing party or system to
generate such energy, and the out-of-pocket cost of the supplying party
or system to provide such energy. Such allocation shall be made as
provided in subsections 3.21 and 3.22 of this section.
3.21 Each party or system participating in the transaction other
than the supplying and purchasing parties or systems, shall
be paid (a) its cost of purchasing the energy supplied, plus
(b) its cost of any additional transmission losses incurred,
plus (c) fifteen percent of the savings remaining after
deducting all such costs for transmission losses.
3.22 The supplying party or system shall be paid out-of-pocket
costs of providing the energy, plus one-half of the gross
savings remaining after deducting all (b) and (c) costs
enumerated in section 3.21 above. The receiving party or
system shall be entitled to the other one-half of the such
savings.
Non-Displacement Energy
3.3 Non-Displacement Energy delivered hereunder shall be settled for
either by return of equivalent energy or, at the option of the supplying
party, by payment of the out-of-cost of the supplying party in generating
or supplying such energy plus ten percent of such cost. Such cost shall
be as of the delivery point or points, as provided for in Section 4.01 of
said Interconnection Agreement, and shall take into account the electrical
losses incurred from the source or sources of such energy to said delivery
point or points. If equivalent energy is returned, it shall be returned at
times when the load conditions of the receiving party are equivalent to the
load conditions of such party at the time the energy was delivered. If such
party elects to have equivalent energy returned under different conditions,
such energy shall be returned in such amounts as will compensate the
supplying party for the difference in conditions as agreed by the Operating
Committee.
EXHIBIT IV
SERVICE SCHEDULE D
SHORT TERM POWER
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the "Agreement")
shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - SERVICES TO BE RENDERED
2.1 Either party, by giving the other party sufficient notice, may
reserve for periods of one or more days or weeks, such electric power
(herein called "Short Term Power") as the supplying party at that time
may have and is willing to supply as Short Term Power. The party asked
to supply Short Term Power shall be the sole judge as to the amounts and
periods that it has electric power available that may be reserved by the
other party as Short Term Power. As used herein, the term "week" shall
mean any seven consecutive days.
2.2 The party desiring to reserve Short Term Power shall specify in a
notice to the other party the number of kilowatts and the period for
which it desires to reserve such power and the desired delivery schedule
for such power. The supplying party shall promptly acknowledge receipt
of such notice and, shall signify the extent of its ability and willingness
to supply power in accordance with the provisions of such
notice. Any such notice or acknowledgement thereof initially may be
given orally; however if requested by either party, it shall be confirmed
in writing and such confirmation shall be forwarded not later than the
third day following the day such oral notice is given, excluding
Saturdays, Sundays and holidays.
2.3 During the period the Short Term Power has been reserved as
provided in Section 2.2 above, the supplying party shall deliver upon
call electric energy (herein called "Short Term Energy") to the other
party at the delivery point or points set forth in Section 4.01 of the
Agreement in amounts not to exceed the number of kilowatts reserved.
However, in the event conditions arise during such period which could not
have been reasonably foreseen at the time Short Term Energy was reserved
and such conditions would cause the delivery of said power to be
burdensome to the supplying party, said party shall have the right to
require the purchasing party to reduce for any portion of such period the
amount of such energy being taken to the amount specified by the
supplying party. The purchasing party shall promptly comply with such
requirement of the supplying party.
SECTION 3 - COMPENSATION
3.1 The purchasing party shall pay the supplying party;
3.11 For any week that Short Term Power is reserved, $1.05 per
kilowatt reserved; less, for each day during any part of which the
amount of such Short Term Power is reduced by the supplying party,
$0.18 per kilowatt of the reduction (except that in no event shall
the total of such deductions in any week exceed $1.05 per
kilowatt). For each period less than one week that Short Term
Power is reserved, $0.18 per kilowatt reserved per day; less, for
any day during any part of which the amount of Short Term Power is
reduced by the supplying party, $0.18 per kilowatt of the
reduction; plus
3.12 110% of the out-of-pocket cost of supplying the Short Term
Energy taken during such reservation periods that comes from the
supplying party's own system; plus, for energy purchased by the
supplying party from another system to supply any part of the Short
Term Energy taken during such reservation periods, 100% of the
amount paid therefore by the supplying party plus 10% thereof not
to exceed 1.6 mills per kilowatthour.
EXHIBIT V
SERVICE SCHEDULE E
LIMITED TERM POWER (FIRM)
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - SERVICES TO BE RENDERED
2.1 Either party by giving the other party notice may reserve for
periods of not less than one (1) or more than twelve (12) months, such
electric power (herein called "Limited Term Power (Firm)") as the other
party may be willing to make available as Limited Term Power (Firm). The
party asked to supply Limited Term Power (Firm) shall be the sole judge
as to the amounts and periods that it has electric power available that
may be reserved by the other party as Limited Term Power (Firm).
2.11 To reserve Limited Term Power (Firm), the party desiring such
power shall specify in its notice to the supplying party the
number of kilowatts and the period for which it desires to so
reserve such power. The supplying party shall signify the
extent of its ability and willingness to comply with the
provisions of such notice. Any notice or any acknowledgement
of such notice that initially may be given orally shall be
confirmed thereafter in writing.
2.12 During each period that Limited Term Power (Firm) has been
reserved as above provided, the supplying party shall deliver
upon call electric energy (herein called "Limited Term Energy
(Firm)") to the other party at the delivery point or points
set forth in Section 4.01 of Article 4 of the Agreement in
any amount up to and including the number of kilowatts
reserved. However, in the event conditions arise during such
period which could not have been reasonably foreseen at the
time said power was reserved and such conditions would cause
the delivery of Limited Term Energy (Firm) to be burdensome
to the supplying party, the supplying party may, upon notice
to the reserving party reduce or interrupt the delivery of
such energy to preserve the integrity of, or to prevent or
limit any instability on, its system.
2.13 The Limited Term Power (Firm) billing demand for any period
shall be taken as equal to the number of kilowatts reserved
as Limited Term Power (Firm) for such period.
SECTION 3 - COMPENSATION
3.1 The reserving party shall pay the supplying party:
3.1 For any month that Limited Term Power (Firm) is reserved,
$5.50 per kilowatt reserved; plus,
3.12 110% of the out-of-pocket costs of supplying the Limited Term
Energy (Firm) taken during such reserved periods that is generated
by the supplying party, plus, for energy purchased by the supplying
party from another system to supply any part of the Limited Term
Energy (Firm), 100% of the amount paid therefore by the supplying
party, plus 10% thereof not to exceed 1.6 mills per kilowatthour.
EXHIBIT VI
SERVICE SCHEDULE F
DIVERSITY POWER
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - DIVERSITY POWER
2.1 From time to time, because of differences in load patterns one of
the parties hereto may have excess capacity during one seasonal load
period at the same time the other party is experiencing its peak load
season. At such time it may be to the parties' mutual advantage to
schedule exchange of certain portions of any such excess capacity.
Such
capacity shall be termed and is herein called "Diversity Power."
2.015 Seasonal Load Period shall mean for the Summer Season Load
Period, the months of April thru September and for the Winter
Seasonal Load Period, the months of October thru March.
2.2 At any time Diversity Power transactions are agreed upon between
the parties, the party which purchases Diversity Power during one
seasonal load period shall be obligated to have available a like amount
of Diversity Power for the other party during the other seasonal load
period.
2.3 The party supplying Diversity Power shall provide reserve capacity
for the committed amount, equivalent to that provided for its own
customers, exclusive of customers with interruptible service contracts.
2.4 Energy associated with the reservation of Diversity Power shall be
scheduled by the purchasing party no less than 18 hours in advance of
receiving such energy. Energy receipts for a Monday shall be scheduled
no later than noon of the preceding Friday.
SECTION 3 - COMPENSATION
3.1 Demand Charges - There shall be no demand charge for Diversity
Power.
3.2 Energy Charges - Energy shall be billed at out-of-pocket cost plus
ten percent of such cost. In the event that any part of the
out-of-pocket cost includes energy purchased by the supplying Party, only
the energy portion of such purchase cost shall be included. Any
associated charges for demand, transmission, or other burden shall be
excluded.
Modification No. 1
to
INTERCONNECTION AGREEMENT
Dated December 1, 1981
between
INDIANAPOLIS POWER & LIGHT COMPANY
and
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
Dated as of June 1, 1982
THIS MODIFICATION No. 1, made and entered into as of the first day
of June, 1982 between INDIANAPOLIS POWER & LIGHT COMPANY (IPL), an
Indiana corporation, and HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
(Hoosier), also an Indiana corporation.
W I T N E S S E T H:
WHEREAS, IPL and Hoosier entered into an Interconnection Agreement,
dated December 1, 1981; (said Interconnection Agreement, being herein
called the 1981 Agreement); and
WHEREAS, the parties desire to further modify the 1981 Agreement,
as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein set forth, the parties agree as follows:
SECTION 1 - Section 3--Compensation of Service Schedule D - Short
Term Power of the 1981 Agreement shall be modified and amended to read as
follows:
"SECTION 3 - COMPENSATION
3.1 The purchasing party shall pay the supplying party;
3.11 DEMAND CHARGE - For any week that Short Term Power is
reserved, (a) $1.05 per kilowatt reserved if IPL is the supplying
party or (b) a rate not to exceed $1.05 per kilowatt reserved if
Hoosier is the supplying party; less, for each day during any part
of which the amount of such Short Term Power is reduced by the
supplying party, one sixth of the weekly rate per kilowatt of the
reduction (except that in no event shall the total of such
deductions in any week exceed the weekly rate). For each period
less than one week that Short Term Power is reserved, one sixth of
the weekly rate per kilowatt reserved per day (not to exceed $0.175
per kilowatt reserved per day); less, for any day during any part
of which the amount of Short Term Power is reduced by the supplying
party, one sixth of the weekly rate per kilowatt (not to exceed
$0.175 per kilowatt) of the reduction. In the event the supplying
party, at the request of the purchasing party, obtains capacity
from a third party specifically for the purpose of supplying any
portion of the Short Term Power pre-arranged in accordance with
Section 2.2 of this Service Schedule, the Demand Charge for such
Short Term Power supplied shall be equal to all associated Demand
Charges which the supplying party must pay therefore.
3.12 ENERGY CHARGES - 110% of the out-of-pocket cost of supplying
the Short Term Energy taken during such reservation periods that
comes from the supplying party's own system; plus, for energy
purchased by the supplying party from another system to supply any
part of the Short Term Energy taken during such reservation
periods, 100% of the amount paid therefore by the supplying party
plus 10% thereof not to exceed 1.6 mills per kilowatthour."
SECTION 2. This Modification No. 1 shall be effective from the
date first above written to the expiration date of the 1981 Agreement.
SECTION 3. Except as hereinabove modified and amended, all the
terms and conditions of the 1981 Agreement shall remain in full force and
effect.
SECTION 4. This Modification No. 1 shall inure to the benefit of
and be binding upon the successors and assigns of the respective parties
hereto.
IN WITNESS WHEREOF, the parties herein have caused this Agreement
to be executed by their duly authorized officers.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Robert W. Hill
Robert W. Hill, President
HOOSIER ENERGY RURAL ELECTRIC
COOPERATIVE, INC.
By /s/ Virgil E. Peterson
Modification No. 2
To
INTERCONNECTION AGREEMENT
Between
INDIANAPOLIS POWER & LIGHT COMPANY
And
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
Dated as of October 1, 1983
MODIFICATION NO. 2
To
INTERCONNECTION AGREEMENT
Between
INDIANAPOLIS POWER & LIGHT COMPANY
And
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
THIS MODIFICATION NO. 2, dated as of this 1st day of October, 1983,
between INDIANAPOLIS POWER & LIGHT COMPANY (hereinafter called "IPL"), an
Indiana corporation, and HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
(hereinafter called "Hoosier"), an Indiana corporation,
WITNESSETH:
0.01 WHEREAS, there is not in force and effect between IPL and
Hoosier an interconnection agreement dated as of December 1, 1981, as
amended by a Modification No. 1 dated June 1, 1982 (such agreement as so
amended being hereinafter referred to as the "1981 Interconnection
Agreement"); and
0.02 WHEREAS, in order to meet customer loads in the area, Hoosier
is required to establish as soon as practicable an electric substation
near the intersection of 800 North Road and 500 West Road in Johnson
County, Indiana (hereinafter referred to as the "Honey Creek Substation");
and
0.03 WHEREAS, Hoosier is presently unable to supply electric power
to the Honey Creek Substation because it has no transmission lines in the
area thereof and it has been unable to work out a permanent arrangement
for the transmission of electric power to the Honey Creek Substation
either through the construction of its own transmission facilities or
through the utilization of the transmission facilities of another utility;
and
0.04 WHEREAS, Hoosier represents to IPL that it is using, and will
continue to use, its best efforts either to construct adequate
transmission facilities, or to otherwise make arrangements, for the
transmission of electric power to the Honey Creek Substation within the
next five years, but that in the interim, Hoosier desires to provide
electric power to the Honey Creek Substation through the temporary
establishment of a tap point on IPL's 138KV transmission line running
from its Pritchard Generating Station to its Southport Substation
(hereinafter referred to as the "Honey Creek Tap Point"); and
0.05 WHEREAS, IPL in reliance upon the foregoing representations
of Hoosier is willing to provide, but only on a temporary basis, the
Honey Creek Tap Point upon the terms and conditions herein provided;
0.06 NOW, THEREFORE, in consideration of the premises and of the
mutual covenants set forth herein, the parties agree as follows:
ARTICLE 1
1.01 The 1981 Interconnection Agreement shall be, and the same
hereby is, amended as follows:
A. Article 1 thereof is hereby amended by inserting immediately
following the present subsection 1.014 thereof, a new subsection,
designated "1.015" to read as follows:
"1.015 At its Honey Creek Substation, 138,000 volt
three-phase interrupting device, three motor operated
supervisory controlled 138,000 volt switches, a 10/12.5 MVA
transformer, 12,470 volt metering equipment, supervisory and
communication equipment including bank differential
indication to IPL's control center, relaying, switching, and
appurtenant equipment, all of which equipment shall be
subject to the approval of IPL."
and inserting immediately following the present subsection 1.025
thereof, a new subsection, designated "1.026" to read as follows:
"1.026 At Honey Creek Tap Point, IPL agrees to make such
modifications to its transmission facilities as are necessary
to effect a connection at such Tap Point."
and by inserting immediately following the present subsection 1.043
thereof, a new subsection, designated "1.044" to read as follows:
"1.044 Hoosier agrees to pay IPL within 15 calendar days of
receipt of invoice, all IPL costs associated with
establishing the Honey Creek Tap Point."
and by amending subsection 1.05 thereof to read as follows:
"1.05 The Interconnection Points shall be:
"1.051 The Petersburg Interconnection Point - that point at
Petersburg where the terminal facilities provided therefor by
IPL shall be connected to the Petersburg-Ratts line.
"1.052 The Honey Creek Tap Point - that point at which the
facilities provided therefor by Hoosier shall be connected to
modified facilities of IPL."
and by inserting immediately following the present subsection 1.08
thereof, a new subsection, designated "1.08A" to read as follows:
"1.08A The parties hereto mutually agree that their respective
systems will not be operated in parallel through the Honey Creek
Tap Point. Electric energy supplied by IPL to Hoosier at the Honey
Creek Tap Point will be used only to temporarily supply the
ultimate customers of Johnson County REMC. Any power (demand) or
energy supplied through the Honey Creek Tap Point shall be
accounted and settled for as if supplied through any of the
interconnection points which exist between the two companies. This
accounting shall include any power (demand) and energy losses
occurring on the IPL system due to the transfer of the energy to
the Honey Creek Tap Point."
B. Article 2 thereof is hereby amended by amending Section 2.01 to
read as follows:
"2.01 It is the purpose of the parties hereto to realize on an
equitable basis, all reciprocal benefits practicable to be effected
through coordination in the operation and development of their
respective systems. It is understood by the parties that such
benefits may be realized under the stated terms and conditions of
the following interconnection services:
A. the furnishing of mutual emergency and standby assistance, in
accordance with Service Schedule A annexed hereto;
B. the transfer of electric energy through the transmission
system of one party for the benefit of the other, in
accordance with Service Schedule B annexed hereto;
C. the interchange, sale and purchase of energy to effect
operating economies, in accordance with Service Schedule C
annexed hereto;
D. the sale and purchase of short-term electric power and energy
available on the system of one party and needed on the system
of the other, in accordance with Service Schedule D annexed
hereto;
E. the sale and purchase of limited term power and energy
available on the system of one party and needed on the system
of the other, in accordance with Service Schedule E annexed
hereto;
F. the sale and purchase of diversity power and energy, in
accordance with Service Schedule F annexed hereto;
G. the temporary use of IPL transmission facilities to provide
service to Hoosier's Honey Creek Substation which is not
directly connected to its transmission system, in accordance
with Service Schedule G annexed hereto.
In furtherance of such purpose the parties hereto shall create an
Operating Committee as provided in Article 7 hereof."
and by amending Section 2.03 to read as follows:
"2.03 The respective service schedules shall be designated:
I. Service Schedule A - Emergency Service
II. Service Schedule B - Energy Transfer
III. Service Schedule C - Interchange Power
IV. Service Schedule D - Short Term Power
V. Service Schedule E - Limited Term Power (Firm)
VI. Service Schedule F - Diversity Power
VII. Service Schedule G - Temporary Transmission Use
such service schedules having been agreed upon between the parties
hereto, are attached hereto, made a part hereof, and marked
Exhibits I, II, III, IV, V, VI and VII, respectively."
and by adding Section 2.05 to read as follows:
"2.05 Notwithstanding anything herein to the contrary, Hoosier
hereby covenants and agrees that it will proceed diligently with
the planning and construction of the transmission facilities
necessary to supply electric power and energy to the Honey Creek
Substation and/or will enter into arrangements with such electric
utilities (other than IPL) as it deems appropriate in order to
provide electric power and energy to the Honey Creek Substation on
or before the termination of Modification No. 2 to this agreement
and Service Schedule G, toward the end that the temporary electric
transmission service being provided by IPL to Hoosier at the Honey
Creek Tap Point may be replaced with electric transmission
facilities of Hoosier or another electric utility within the five
year term of said Modification No. 2 and Service Schedule G."
C. Article 4 thereof is hereby amended by amending subsection
4.021 to read as follows:
"4.021 At the Petersburg Interconnection specified in
Section 1.05 above, by 138,000 volt metering equipment to be
installed, owned and maintained by IPL ('Petersburg Metering
Point')"
and by inserting immediately following subsection 4.021 thereof, a
new subsection, designated "4.022" to read as follows:
"4.022 At the Honey Creek Tap Point specified in Section
1.05 above, by 12,470 volt metering equipment to be installed
and maintained by Hoosier ('Honey Creek Metering Point')"
and by amending Section 4.03 to read as follows:
"4.03 Suitable metering equipment at the metering point provided
in Section 4.02 above shall include electric meters, potential and
current transformers, and such other appurtenances as shall be
necessary to give for each direction of flow the following
quantities:
A. a continuous automatic graphic record of both kilowatts and
kilovars,
B. an automatic record of the kilowatthours for each clock hour,
and
C. a continuous integrating record of the kilowatthours.
Meter readings taken at the Honey Creek Substation shall be
adjusted by adding such amount as may be necessary to fully
compensate IPL for losses in the Honey Creek transformer and on
IPL's system."
D. Article 7 thereof is hereby amended by inserting immediately
following the present subsection 7.013 thereof, a new subsection
designated "7.014" to read as follows:
"7.014 All matters pertaining to rights of access, and
rights to operate equipment installed as a part of this
agreement."
and by adding a new Section 7.03 to read as follows:
"7.03 With respect to Hoosier's representations that it will use
its best efforts to replace IPL's transmission facilities at the
Honey Creek Tap Point with other transmission facilities, IPL
representatives on the Operating Committee shall have the right of
access at any reasonable time to any information relating to such
representations and to Hoosier's progress in accomplishing the
replacement of the temporary electric transmission service provided
by IPL under Modification No. 2 to this agreement and Service
Schedule G."
E. Article 8 thereof is hereby amended by adding a new Section
8.02 to read as follows:
"8.02 With respect to the Honey Creek Tap Point, Hoosier hereby
agrees that IPL shall not be responsible for disruption of service
or loss of continuity in providing service to the Honey Creek
Substation and Hoosier hereby indemnifies and saves harmless IPL
against any claim for injury to persons and damage to property in
any way resulting from or growing out of any such service
disruption or loss of continuity."
F. Article 9 thereof is hereby amended by correcting the reference
to "Section 9.02" contained in Section 9.01 thereof to read
"Section 9.03"; and by adding a new Section 9.04 to read as
follows:
"9.04 Notwithstanding anything herein to the contrary,
Modification No. 2 to this agreement and Service Schedule G will
terminate on the earlier of the following dates: (i) on the date
Hoosier has replaced the service provided by IPL under said
Modification No. 2 and Service Schedule G with transmission
facilities of Hoosier or with transmission facilities of another
utility, or (ii) on the date that is five years after the effective
date of said Modification No. 2 and Service Schedule G as
established by the Federal Energy Regulatory Commission (FERC);
provided, that in the event Hoosier is in the process of replacing
IPL's transmission service under said Modification No. 2 and
Service Schedule G, but, through no fault of its own, Hoosier is
unable to consummate such replacement within the five-year term of
said Modification No. 2 and Service Schedule G, then the term
thereof may be extended for an additional period of not more than
three years, upon adequate assurances being given to IPL by Hoosier
that replacement of such transmission service by IPL to Hoosier
will be accomplished within such additional period. If Hoosier
fails to make such assurances, or IPL deems them inadequate, such
term shall not be extended. Hoosier agrees, in connection with any
such termination, that IPL may unilaterally file an appropriate
notice of termination with FERC, in which filing Hoosier shall
concur. Hoosier hereby releases IPL from all obligations,
contractual or otherwise, to provide electric transmission service
to the Honey Creek Substation through the Honey Creek Tap Point
beyond the date of termination of said Modification No. 2 and
Service Schedule G as hereinabove provided, and Hoosier agrees that
after such termination it shall be required to rely exclusively
upon its own electric transmission facilities or the electric
transmission facilities of a utility other than IPL to supply
electric power and energy to the Honey Creek Substation."
G. Article 10 thereof is hereby amended by adding a new Section
10.04 to read as follows:
"10.04 This Article 10 shall not apply to Modification No. 2 to
this agreement or to Service Schedule G."
H. Article 14 thereof is hereby amended by adding a new Section
14.02 to read as follows:
"14.02 Hoosier hereby covenants and agrees to support, by
concurrence or otherwise, at such reasonable time as IPL deems
appropriate, any filing with FERC that IPL considers necessary and
expedient to terminate and cancel Modification No. 2 to this
agreement and Service Schedule G in accordance with the terms and
conditions of Section 9.04 hereof."
I. Article 16 thereof is hereby amended by adding a new Section
16.03 to read as follows:
"16.03 Upon termination of the Honey Creek Tap Point, Modification
No. 2 to this agreement and Service Schedule G (except for the
reference correction in Section 9.01 which shall remain effective)
shall be of no further force and affect and shall no longer be a
part of this agreement."
ARTICLE 2
2.01 Except as otherwise specifically provided by this
Modification No. 2 or subsequent modifications, the terms
"Interconnection Point", "Metering Point", and "Delivery Point", shall
include all points at which the parties thereto are
interconnected.
ARTICLE 3
Except as hereinabove specifically amended, all other terms and
conditions of the 1981 Interconnection Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Modification No. 2 to be executed by their respective duly authorized
officers as of the day, month and year first written above.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Robert W. Hill
HOOSIER ENERGY RURAL ELECTRIC
COOPERATIVE, INC.
By /s/ Virgil E. Peterson
Virgil E. Peterson
Executive Vice President
and General Manager
Exhibit VII
(to the 1981 Agreement)
SERVICE SCHEDULE G
TEMPORARY TRANSMISSION USE
SECTION 1 - DURATION
1.1 This Service Schedule, being part of Modification No. 2 to
the Agreement dated December 1, 1981 between Indianapolis Power &
Light Company ("IPL") and Hoosier Energy Rural Electric
Cooperative, Inc. ("Hoosier") as amended by Modification No. 1
dated June 1, 1982 (the "1981 Agreement"), shall become effective
on the effective date of Modification No. 2 and shall continue in
effect until terminated in accordance with that Modification.
SECTION 2.1 - SERVICES TO BE RENDERED
2.1 IPL agrees to provide temporary transmission services for the
purpose of delivering power (demand) and energy from any of the
interconnection points between IPL and Hoosier to the tap point
described and referred to in said Modification No. 2 as the Honey
Creek Tap Point.
2.2 Any power (demand) and energy delivered by IPL to the Honey
Creek Tap Point shall be simultaneously supplied to IPL from
Hoosier at any other interconnection point or points provided for
in the 1981 Agreement. The power and energy shall be adjusted to
compensate IPL for electrical losses incurred in the delivery of
such power. Any difference in power or energy delivered to Hoosier
through said tap point and that supplied by Hoosier to IPL shall be
settled for in accordance with Section 3.03 of the 1981 Agreement.
2.3 Hoosier agrees that the power (demand) delivered shall not
exceed fifteen (15) MW at the Honey Creek Tap Point.
SECTION 3 - COMPENSATION
3.1 Electric power measured in kilowatts delivered at the Honey
Creek Tap Point under this Service Schedule shall be billed at
$0.92 per kilowatt month. This demand charge for use of IPL's
transmission facilities shall be on the maximum hourly demand in
kilowatts, measured in the calendar month of billing, and shall be
adjusted to compensate IPL for losses in the IPL system and in the
transformer bank used at the Honey Creek Tap Point.
Modification No. 3
To
INTERCONNECTION AGREEMENT
Between
INDIANAPOLIS POWER & LIGHT COMPANY
And
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
Dated as of September 1, 1989
MODIFICATION NO. 3
To
INTERCONNECTION AGREEMENT
Between
INDIANAPOLIS POWER & LIGHT COMPANY
And
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
THIS MODIFICATION NO. 3, dated as of this 1st day of September,
1989, between INDIANAPOLIS POWER & LIGHT COMPANY (hereinafter called
"IPL"), an Indiana corporation, and HOOSIER ENERGY RURAL ELECTRIC
COOPERATIVE, INC. (hereinafter called "Hoosier"), an Indiana corporation,
WITNESSETH:
0.01 WHEREAS, there is now in force and effect between IPL and
Hoosier an interconnection agreement dated as of December 1, 1981, as
amended by a Modification No. 1 dated as of June 1, 1982 and Modification
No. 2 dated as of October 1, 1983 (such agreement as so amended being
hereinafter referred to as the "1981 Agreement"); and
0.02 WHEREAS, IPL desires to utilize, when and as requested,
certain electric transmission facilities of Hoosier to transmit power and
associated energy from Big Rivers Electric Corporation (hereinafter
called "Big Rivers") located in Kentucky to IPL over a 20-year period
beginning January 1, 1991; and
0.03 WHEREAS, Hoosier is willing to transmit such power and
associated energy from Big Rivers to IPL when and as requested over such
20 year period in accordance with the terms and conditions of this
Modification No. 3 and Service Schedule H annexed thereto, and
0.04 WHEREAS, Hoosier desires to extend Service Schedule G and IPL
is willing to extend Service Schedule G through December 31, 2010, in
accordance with the terms and conditions of this Modification No. 3 and
Service Schedule G annexed thereto, and
0.05 WHEREAS, both parties desire to revise and/or refile Service
Schedules A, B, C, D, E and F and file New Service Schedules A, B, C, D,
E, and F as part of this Modification No. 3.
ARTICLE 1
1.01 The 1981 Agreement shall be, and the same hereby is, amended
as follows:
I. Article 2 thereof is hereby amended by revising Section 2.01
to read as follows:
"2.01 It is the purpose of the parties hereto to realize on an
equitable basis, all reciprocal benefits practicable to be effected
through coordination in the operation and development of their
respective systems. It is understood by the parties that such
benefits may be realized under the stated terms and conditions of
the following interconnection services:
A. the furnishing of mutual emergency and standby
assistance, in accordance with Service Schedule A
annexed hereto;
B. the transfer of electric energy through the
transmission system of one party for the benefit of the
other, in accordance with Service Schedule B annexed hereto;
C. the interchange, sale and purchase of energy to effect
operation economies, in accordance with Service
Schedule C annexed hereto;
D. the sale and purchase of short-term electric power and
energy available on the system of one party and needed
on the system of the other, in accordance with Service
Schedule D annexed hereto;
E. the sale and purchase of limited term power and energy
available on the system of one party and needed on the
system of the other, in accordance with Service Schedule
E annexed hereto;
F. the sale and purchase of diversity power and energy, in
accordance with Service Schedule F annexed hereto;
G. the temporary use of IPL transmission facilities to
provide service to Hoosier's Honey Creek Substation
which is not directly connected to its transmission
system, in accordance with Service Schedule G annexed
hereto;
H. the transfer of electric power and associated energy
from Big Rivers to IPL when and as requested in
accordance with Service Schedule H annexed hereto.
In furtherance of such purpose the parties hereto shall
create an Operating Committee as provided in Article 7
hereof."
and by amending Section 2.03 to read as follows:
"2.03 The respective service schedules shall be designated:
I. Service Schedule A - Emergency Service
II. Service Schedule B - Energy Transfer
III. Service Schedule C - Interchange Power
IV. Service Schedule D - Short Term Power
V. Service Schedule E - Limited Term Power (Firm)
VI. Service Schedule F - Diversity Power
VII. Service Schedule G - Temporary Transmission Service
VIII. Service Schedule H - Specific Transmission Service
such service schedules having been agreed upon between the Parties
hereto, are attached hereto, and made a part hereof, and marked
Exhibits I, II, III, IV, V, VI, VII and VIII respectively."
and by deleting Section 2.05 (as added by Modification No. 2) in its
entirety.
II. Article 7 thereof is amended by deleting there from Section
7.03 (as added by modification No. 2) in its entirety.
III. Article 9 thereof is hereby amended by revising Section 9.01
to read as follows:
"9.01 This agreement shall become effective at the date hereof,
subject to the filing requirements of FERC, or any other regulatory
authority having jurisdiction and to approval of any such
authority, if required, and except as otherwise provided in Service
Schedules G and H shall continue in effect through December 31,
2010, (the "Initial Term"), and thereafter for successive terms of
three (3) years each unless and until terminated as provided in
Section 9.03 thereof."
and by deleting Section 9.04 (as added by Modification No. 2) in its
entirety and by adding new Sections 9.04 and 9.05 to read as follows:
"9.04 If any regulatory authority having jurisdiction over
Modification No. 3 does not accept it for filing within ninety (90)
days after its submission, or requires any modification to its
rates, terms or conditions as a condition of accepting Modification
No. 3 for filing, either party may terminate Modification No. 3, if
in such party's good faith judgment such modification materially
changes the benefits or burdens to the party desiring to terminate.
In that event, such party may terminate Modification No. 3 by
notifying the other party in writing of its intention to so
terminate not more than thirty (30) days after final action is
taken not to accept Modification No. 3 for filing or which requires
such modification as a condition of such acceptance. Modification
No. 3 shall terminate thirty (30) days after receipt of such notice
by the other party.
"9.05 If at any time after acceptance of Modification No. 3 any
regulatory authority having jurisdiction over it modifies its
rates, terms or conditions, either party may terminate Modification
No. 3 if in such party's good faith judgment such modification
materially changes the benefits or burdens of Modification No. 3 to
the party desiring to terminate. In that event, such party may
terminate Modification No. 3 by notifying the other party in
writing within 90 days after the notice of its intention to so
terminate as well as the desired termination date."
IV. Article 10 shall be amended in its entirety to read as follows:
"ARTICLE 10
"ARBITRATION
"10.01 Any controversy or claim arising out of or relating to
this agreement or any breach thereof, shall first be submitted in
writing as soon as practicable to the authorized representatives
and one of their respective alternates designated under Subsection
7.01 hereof, the 4 of whom shall constitute a Review Committee for
the purpose of reviewing the controversy or claim and reaching a
majority opinion as to the appropriate resolution thereof. In the
event a majority opinion of the Review Committee cannot be reached
within 30 days of submission, the matter shall be submitted to the
President of IPL and the General Manager of Hoosier who shall use
their best efforts to resolve such controversy or claim. If the
controversy or claim cannot be resolved within 30 days after submission
to the President and General Manager, the same shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of The
American Arbitration Association and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof.
Arbitration proceedings
shall be conducted at Indianapolis, Indiana and arbitrators shall
make awards within 90 days of the date proceedings begin unless
otherwise agreed to in writing by the parties."
V. Article 11 shall be amended in its entirety to read as follows:
"ARTICLE 11
"INDEMNIFICATION AND LIMITATION OF LIABILITY
"11.01 Limitation of Liability. In no event shall one party
be liable to the other party for any indirect, special, incidental
or consequential damages with respect to any claim arising out of
this agreement.
"11.02 Indemnification Clause. Each party shall indemnify, defend
and hold harmless the other party from and against any liability,
loss, cost, damage and expense because of injury or damage to
persons or property resulting from, or arising out of the use of
its own facilities or the production or flow of electric energy by
and through its own facilities, except when such injury or damage
is due to the sole negligence of the other party. In addition,
each party shall hold the other party harmless for any taxes,
licenses, permits, fees, penalties, or fines assessed against one
party upon any of the property of such party located on the
premises of the other party.
"11.03 Environmental Liability. Each party shall be responsible
for its own compliance with all applicable environmental
regulations, and each party shall hold the other party harmless
from any liability, loss, cost or expense arising out of, and shall
bear all costs arising from, its failure to comply with such
environmental regulations."
VI. Article 14 thereof is hereby amended by deleting Section
14.02 (as added by Modification No. 2) in its entirety.
VII. Article 16 thereof is hereby amended by deleting Section
16.03 (as added by Modification No. 2) in its entirety.
VIII. Article 20 and Article 21 are hereby added to the 1981
Agreement to read as follows:
"ARTICLE 20
"DEFAULT
"20.01 Default Defined. As used herein, "Default" shall mean the
failure of a party to make any payment or perform any obligation at
the time and in the manner required by this agreement, except where
such failure to discharge obligations (other than the payment of
money) is the result of Force Majeure. Failure to make any payment
in the time and manner required by this agreement shall not be
excused as a Default by payment of late charges in accordance with
the provisions in Section 20.02 below.
"20.02 Remedies For Default. Upon failure of a party to make a
payment or perform an obligation required hereunder, the other
party shall give written notice of Default to the defaulting party.
The defaulting party shall have thirty (30) days within which to
cure the Default. If a Default is not cured within such period,
the party not in Default, at its option, may, in addition to all
other rights and remedies available at law, in equity or under any
other provision of this agreement: (i) give notice to the
defaulting party of its intention to cure the Default and to take
such steps as such party deems necessary to cure the Default, or
(ii) suspend this agreement for a period of 6 months, after which
this agreement shall automatically terminate. The defaulting party
shall, in any event, pay to the other party the total of all
additional costs reasonably incurred by such other party as a
result of such Default and/or the curing of such Default,
including, reasonable attorneys' fees, money reasonably paid to
others, the reasonable equivalent in money for services of property
obtained, and any other costs reasonably incurred by such other
party in attempting to remedy such Default, together with interest
on the total of such costs at the per annum rate of two (2) percent
above the commercial lending rate as determined in Article 6 hereof.
This provision is not intended as a liquidated damages
provision or to limit liability in any way, and the party not in
Default may also maintain such other actions for damages as may be
provided by law, in equity or under this agreement."
"ARTICLE 21
"FORCE MAJEURE
"21.02 Force Majeure. The term "Force Majeure" shall mean any
cause beyond the control of the party invoking the Force Majeure,
including, but not limited to, failure or threat of failure of
facilities, equipment or fuel supply, ice, act of God, flood,
earthquake, storm, fire, lightning, explosion, epidemic, war, civil
war, invasion, insurrection, military or usurped power, act of the
public enemy, riot, civil disturbance or disobedience, strike,
lockout, work stoppage, other industrial disturbance or dispute,
labor or material shortage, national emergency, sabotage, failure
of contractors or suppliers of materials; inability to obtain or
ship materials or equipment because of the effect of similar causes
on suppliers or carriers; restraint by court order or other public
authority or governmental agency, or action or non-action by, or
failure to obtain the necessary authorizations or approvals from,
or obtaining the necessary authorizations or approvals only subject
to unreasonable restrictions from, any governmental agency or
authority, which by the exercise of due diligence such party could
not reasonably have been expected to avoid. Nothing contained
herein shall be construed to require a party to settle any strike,
lockout, work stoppage or other industrial disturbance or dispute
in which it may be involved or to take an appeal from any judicial,
regulatory or administrative action. Any party rendered unable to
fulfill any of its obligations under this agreement by reason of
Force Majeure shall exercise due diligence to remove such inability
with all reasonable dispatch. In the event either party is unable,
in whole or in part, to perform any of its obligations by reason of
Force Majeure the obligations of the party relying thereon, insofar
as such obligations are affected by such Force Majeure, shall be
suspended during the continuance thereof but no longer. The party
invoking the Force Majeure shall specifically state the full
particulars of the Force Majeure and the time and date when the
Force Majeure occurred. Notices given by telephone under the
provisions of this Article shall be confirmed in writing as soon as
reasonably possible. When the Force Majeure ceases, the party
relying thereon shall give immediate notice thereof to the other
party. This agreement shall not be terminated by reason of Force
Majeure but shall remain in full force and effect."
ARTICLE 2
2.01 Except as hereinabove specifically amended, all other terms
and conditions of the 1981 Agreement and Modification No. 2 shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Modification No. 3 to be executed by their respective duly authorized
officers as of the day, month and year first written above.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Robert W. Hill
Robert W. Hill
Chairman and President
HOOSIER ENERGY RURAL ELECTRIC
COOPERATIVE, INC.
By /s/ J. Steven Smith for
Virgil E. Peterson
Executive Vice President
and General Manager
EXHIBIT I
SERVICE SCHEDULE A
EMERGENCY SERVICE
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - SERVICES TO BE RENDERED
2.1 Subject to the provisions of subsection 2.2 of this Section 2, in
the event of a breakdown or other emergency in or on the system of either
party involving either sources of power or transmission facilities, or
both, impairing or jeopardizing the ability of the party suffering the
emergency to meet the loads of its system, the other party shall supply
to the party having the emergency such electric energy as the supplying
party is requested to deliver; provided, that neither party shall be
obligated to supply such emergency energy which, in the supplying party's
sole judgment, cannot be delivered without creating a hazard to or
economic burden upon its operations or without impairing or jeopardizing
the total load requirements of its system; and provided further, that
neither party shall be obligated to supply such emergency energy for a
period in excess of forty-eight consecutive hours during any single
emergency.
2.2 The parties recognize that the supply of electric energy as
provided for in subsection 2.1 of this Section 2 is subject to two
conditions which may preclude the delivery of such energy as so provided:
(a) the party requested to deliver electric energy may be suffering an
emergency in or on its own system as described in said subsection 2.1, or
(b) the system of the party of whom such request is made may be
delivering electric energy under a mutual emergency interchange
agreement, to the system of another interconnected company which is
suffering an emergency in or on its system. Under conditions as cited
under (a) above, neither party shall be considered to be in default
hereunder if unable to comply with the provisions of said subsection 2.1.
Under conditions as cited under (b) above, neither party shall be
considered to be in default hereunder if it is unable to comply with the
provisions of said subsection 2.1 provided that the aforesaid
interconnected company has suffered said emergency in or on its system
prior to and within forty-eight hours of that of the other party hereto
and that, if requested by said other party, such delivery of electric
energy to said interconnected company shall be discontinued within
forty-eight hours following the start of such delivery, and a subsequent
delivery shall be made for a full forty-eight hour period to said other
party in accordance with the provisions of said subsection 2.1.
2.3 If at any time the record over a reasonably prior period shows
clearly that either of the parties has failed to deliver energy in
accordance with and subject to the provisions of subsection 2.1 and
subsection 2.2 of this Section 2, either party, by written notice given
to the other party, may call for a joint study by the parties of the
reserve generating capacity in and provided for their respective systems
and of their respective system transmission facilities affecting the
supply and delivery of power and energy under the Agreement. It shall be
the purpose of such study to determine the adequacy or inadequacy of
reserve generating capacity and transmission facilities being provided to
meet the requirements of the parties' respective systems, reflecting
obligations under the Agreement, and, if inadequate, the extent of the
burden that one party may be placing upon the other. If it should be
found that one party is placing an unreasonable burden upon the other,
the party causing such burden shall take such measures as are necessary
to remove the burden from the other party, or the parties shall enter
into such arrangements as shall provide for equitable compensation to the
party being burdened.
SECTION 3 - COMPENSATION
3.1 Emergency Energy shall be settled for, at the option of the
supplying party, either by payment or by return of equivalent energy.
3.2 If the supplying party opts to receive payment for Emergency Energy
delivered, the receiving party shall pay the supplying party the greater
of:
3.21 110% of the out-of-pocket cost of supplying such Emergency
Energy that is generated from the supplying party's own
system, and, for energy purchased by the supplying party from
another interconnected system which is not a signatory to
this Agreement ("Third Party") at the request of the
receiving party, 100% of the amount paid to such Third Party
plus up to 3.46 mills per kilowatthour (consisting of up to
2.46 mills per kilowatthour for a transmission charge and 1
mill per kilowatthour for difficult to quantify energy
related costs) plus any transmission losses.
3.22 30 mills per kilowatthour of such Emergency Energy
3.3 If the supplying party opts to receive equivalent energy for
Emergency Energy delivered; such equivalent energy shall be returned at
times when the load conditions of the party originally supplying
Emergency Energy are substantially equivalent to the load conditions of
such party that existed when the Emergency Energy was delivered or, if
such party elects to have equivalent energy returned under different
conditions, it shall be returned in such amounts and at such times as,
the Operating Committee agrees will compensate the original supplying
party, for the difference in conditions.
EXHIBIT II
AMENDED
SERVICE SCHEDULE B
ENERGY TRANSFER
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - TRANSFER ARRANGEMENT
2.1 In carrying out the interconnected operation of their respective
systems as provided for under the Agreement, energy being received by a
portion of one party's system from another portion of its system or to
the system of another interconnected company, may flow over the
transmission facilities of the other party as a natural result of the
physical and electrical characteristics of the interconnected network of
transmission lines to which the parties are connected. Such flow of
energy may occur during periods when conditions of system operation are
normal or may occur during periods of emergency caused by the failure of
either sources of power or transmission facilities, or both. In respect
to such flow of energy (hereinafter called "energy transfer") the parties
agree as follows:
2.11 Such energy transfer over their respective transmission
facilities shall be permitted whenever such transfer occurs;
provided, that such energy transfer shall not be of such
magnitude or duration as to affect adversely, or jeopardize
the ability of, the party over whose system such energy
transfers occur to render or accept service to or from
companies with which it now has, or at any time hereafter may
have contractual arrangements for the interchange of power or
energy.
2.12 The parties recognize that in carrying out the provisions of
this Service Schedule, the above-described energy transfer,
either during periods when conditions of system operation are
normal or during periods of emergency, or both, may
eventually require the installation of additional
transmission facilities in order that such energy transfer
may be properly controlled to the end that the ability of the
party over whose system such energy transfers occur to meet
its own requirements, as described under 2.11 above, is not
affected adversely or jeopardized. In the event the need for
such additional transmission facilities becomes apparent to
either of the parties during any term of this Service
Schedule, upon written notice given by either party to the
other party and as soon as practicable following such notice,
the parties shall jointly reexamine conditions relating to
Energy Transfer. In such reexamination, if called for, the
parties shall agree upon such additional transmission
facilities as may be required to be installed, if any, and
upon an equitable basis for bearing the cost of installing,
maintaining and operating such facilities, if installed.
SECTION 3 - POWER AND ENERGY ACCOUNTING
3.1 The parties recognize that energy transfers as described under
Section 2 of this Service Schedule, except for such amounts of electrical
losses as may be incurred because of such energy transfers, are the
simultaneous acceptance and delivery of like amounts of power and energy
by and from the system of the party over whose system such energy transfers
occur. Power and energy associated with energy transfers, including
electrical losses associated therewith, shall be accounted for
each clock-hour as provided for under Article 5 of the Agreement. Proper
consideration to such electrical losses will be in accordance with the
manner agreed upon by the Operating Committee. It is understood by the
parties, however, that such electrical losses resulting from energy
transfers, to be taken as losses over and above the losses prevailing
under basic conditions agreed upon by the parties, shall be supplied
simultaneously by the party for whom such energy transfers are being
made. The parties agree that initially such basic conditions will be
established as those that exist when the scheduled net delivery between
the systems of the parties, and between their respective systems and the
systems of other interconnected companies, is zero kilowatts. It is
further understood that, from time to time, conditions may require the
establishment of different basic conditions for such purpose. Either
party by written notice given to the other party may call for a prompt
reexamination and reconsideration of matters pertinent to the
establishment of said basic conditions, whenever such reexamination
appears to be warranted, and the parties will thereupon agree to effect
such changes in the basic conditions, if any, that will equitably
compensate the parties for such losses. Should such reexamination be
required, a statement will be prepared by the parties which shall include
in detail the amounts of energy delivered and received by the parties
that are associated with energy transfer and the amounts of electrical
losses associated therewith.
Accepted and approved this 8th day of December, 1989.
HOOSIER ENERGY RURAL ELECTRIC INDIANAPOLIS POWER & LIGHT COMPANY
COOPERATIVE, INC.
By /s/ R.E. Jones /s/ J.C. Berlier
R.E. Jones, Division Manager J.C. Berlier, Vice President
Power Supply Supply Planning and Rates
EXHIBIT III
SERVICE SCHEDULE C
INTERCHANGE POWER
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - SERVICES TO BE RENDERED
Economy Energy
2.1 Either party may arrange to purchase from the other party electric
energy ("Economy Energy") when it is possible to effect a saving thereby
and, when in the sole judgment of the supplying party, such energy is
available. Prior to each Economy Energy transaction, the amount of
energy, the time of its delivery, and the charge therefore shall be
determined by the parties. Receipt or delivery of Economy Energy may
also be arranged with other interconnected systems not parties to this
Agreement.
Non-Displacement Energy
2.2 It is recognized that occasions will arise when transactions under
subsection 2.1 above will be impracticable although a party may have
electric energy (herein called "Non-Displacement Energy") which it is
willing to make available from surplus capacity from its own system or
from outside sources, or both and which can be utilized advantageously
for short intervals by the other party. In such event, the party
desiring such receipt of energy shall notify the other party of the
extent to which it desires to obtain Non-Displacement Energy, and if the
other party, in its sole judgment, determines that Non-Displacement
Energy is available, schedules providing the period and extent of use
shall be mutually agreed upon. Neither party shall be obligated to make
any Non-Displacement Energy available to the other.
SECTION 3 - COMPENSATION
Economy Energy
3.1 The charge for Economy Energy purchased by either party from the
other shall be based on the principle that the purchasing party shall pay
the out-of-pocket cost of the supplying party such energy and that the
resulting savings to the purchasing party shall be equally shared by both
parties.
3.2 When Economy Energy is obtained from or delivered to a system
interconnected with either of the Parties which is not a signatory in the
Agreement ("Third Party"), payments among the participants in such a
transaction shall be based on the out-of-pocket costs of the supplying
party or Third Party providing the Energy and an allocation of the gross
savings, which are defined as the difference between (1) what the out-of-
pocket costs of the receiving party or Third Party would have been to
generate such Energy, and (2) the out-of-pocket costs of the supplying
party or Third Party providing the Energy. Such allocation shall be made
as provided in subsection 3.21 and 3.22 hereinbelow.
3.21 The transmitting party shall be paid (A) its cost of
purchasing the Energy supplied, plus (B) its costs of any
additional transmission losses incurred, plus (C) the greater
of fifteen percent of the gross savings remaining after
deducting all such payments for transmission losses or an
amount up to 3.46 mills per kilowatthour of Energy received
for transmission.
3.22 The supplying party or Third Party shall be paid its out-
of-pocket costs of providing the Energy, plus one-half of the
gross savings remaining after deducting all payments made
under subsection 3.21.
Non-Displacement Energy
3.3 Non-Displacement Energy delivered hereunder that is generated by
the supplying party's system shall be settled for either by return of
equivalent Energy or, at the option of the supplying party, by the
payment of the out-of-pocket costs of the supplying party generating such
Energy plus ten percent of such cost. If equivalent Energy is returned,
it shall be returned at times when load conditions of the receiving party
are equivalent to the load condition of such party at the time the energy
was delivered or, different conditions, such energy shall be returned in
such amounts, to be agreed upon by the operating committee, as will
compensate for the difference in conditions.
3.4 Non-Displacement Energy delivered under subsection 2.2 above that is
purchased by the supplying party from another interconnected system at
the request of the receiving party shall be settled for by the payment of
100 percent of the amount paid to such Third Party, plus up to 3.46 mills
per kilowatthour (consisting of up to 2.46 mills per kilowatthour for a
transmission charge plus 1 mill per kilowatthour for difficult to
quantify energy related costs) plus any transmission losses.
EXHIBIT IV
SERVICE SCHEDULE D
SHORT TERM POWER
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - SERVICES TO BE RENDERED
2.1 Either party, by giving the other party sufficient notice, may
reserve for periods of one or more days or weeks, such electric power
(herein called "Short Term Power") as the supplying party at that time
may have and is willing to supply as Short Term Power. The party asked
to supply Short Term Power shall be the sole judge as to the amounts and
periods that it has electric power available that may be reserved by the
other party as Short Term Power. As used herein, the term "week" shall
mean any seven consecutive days.
2.2 The party desiring to reserve Short Term Power shall specify in a
notice to the other party the number of kilowatts and the period for
which it desires to reserve such power and the desired delivery schedule
for such power. The supplying party shall promptly acknowledge receipt
of such notice and, shall signify the extent of its ability and
willingness to supply power in accordance with the provisions of such
notice. Any such notice or acknowledgement thereof initially may be
given orally; however if requested by either party, it shall be confirmed
in writing and such confirmation shall be forwarded not later than the
third day following the date such oral notice is given, excluding
Saturdays, Sundays and holidays.
2.3 During the period the Short Term Power has been reserved as
provided in Section 2.2 above, the supplying party shall deliver upon
call electric energy (hereincalled "Short Term Energy") to the other
party at the delivery point or points set forth in Section 4.01 of the
Agreement in amounts not to exceed the number of kilowatts reserved.
However, in the event conditions arise during such period which could not
have been reasonably foreseen at the time Short Term Energy was reserved
and such conditions would cause the delivery of said power to be
burdensome to the supplying party, said party shall have the right to
require the purchasing party to reduce for any portion of such period the
amount of such energy being taken to the amount specified by the
supplying party. The purchasing party shall promptly comply with such
requirement of the supplying party.
SECTION 3 - COMPENSATION
3.1 The Party reserving Weekly or Daily Short Term Power shall pay the
supplying party the following Demand Charges:
3.11 WEEKLY SHORT TERM POWER -- For any week that Short Term
Power is reserved, up to $1.05 per kilowatt reserved;
less, for each day during any part of which the amount
of Weekly Short Term Power is reduced upon notice from
the supplying party, one-sixth (1/6) of the supplying
party's weekly demand rate per kilowatt for each
kilowatt reduction but not more than the rate agreed
upon for each kilowatt per month.
3.12 DAILY SHORT TERM POWER -- For any day that Short Term Power
is reserved, up to $0.21 per kilowatt reserved; less, for
each day during which the amount of Daily Short Term Power is
reduced upon notice by the supplying party, the demand charge
per kilowatt for each day during which any such reduction is
in effect shall be waived for each kilowatt of reduction.
3.13 THIRD PARTY WEEKLY SHORT TERM POWER -- For any week that
Weekly Short Term Power is reserved from a Third Party by the
supplying party for and at the request of the receiving
party, such Short Term Power shall be supplied at the rate of
up to $0.295 per kilowatt reserved per week plus the demand
charge paid therefore by the supplying party to the Third
Party in the event the amount of Weekly Short Term Power
reserved from a Third Party is reduced upon the request of
the Third Party, the demand charge for each day during which
such reduction is in effect shall be reduced by the amount of
which the demand charge payable by the supplying party is
reduced under its Agreement with such Third Party plus,
one-sixth (1/6) of the rate per kilowatt agreement upon under
this paragraph for each kilowatt of reduction per day, but
not more than the rate agreed upon for each kilowatt per week.
3.14 THIRD PARTY DAILY SHORT TERM POWER -- For any day that Daily
Short Term Power is reserved from a Third Party by the
supplying party for and at the request of the receiving
party, such Short Term Power shall be supplied at the rate of
up to $0.059 per kilowatt reserved per day plus the demand
charge paid therefore by the supplying party to the Third
Party. In the event the amount of Daily Short Term Power
reserved from a Third Party is reduced upon the request of
the Third Party, the demand charge for each day during which
such reduction is in effect shall be reduced by the amount by
which the demand charge payable by the supplying party is
reduced under its Agreement with such Third Party plus, the
rate per kilowatt agreed upon under this paragraph for each
kilowatt of said reduction.
3.2 The reserving party shall pay the supplying party for all Weekly or
Daily Short Term Energy delivered at the following rates:
3.21 For each kilowatthour that is generated by the supplying
party's system, 100 percent of the out-of-pocket costs of
supplying Short Term Energy called for during such period,
plus 10 percent of such costs.
3.22 For each kilowatthour purchased by the supplying party from a
Third Party in order to supply the Short Term Energy called
for during such period, 100 percent of the amount of the
Energy charge paid therefore by the supplying party plus 1
mill per kilowatthour plus any transmission losses.
EXHIBIT V
SERVICE SCHEDULE E
LIMITED TERM POWER (FIRM)
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - SERVICES TO BE RENDERED
2.1 Either party by giving the other party notice may reserve for
periods of not less than one (1) or more than twelve (12) months, such
electric power (hereincalled "Limited Term Power (Firm)") as the other
party may be willing to make available as Limited Term Power (Firm). The
party asked to supply Limited Term Power (Firm) shall be the sole judge
as to the amounts and periods that it has electric power available that
may be reserved by the other party as Limited Term Power (Firm).
2.11 To reserve Limited Term Power (Firm), the party desiring such
power shall specify in its notice to the supplying party the
number of kilowatts and the period for which it desires to so
reserve such power. The supplying party shall signify the
extent of its ability and willingness to comply with the
provisions of such notice. Any notice or any acknowledgement
of such notice that initially may be given orally shall be
confirmed thereafter in writing.
2.12 During each period that Limited Term Power (Firm) has been
reserved as above provided, the supplying party shall deliver
upon call electric energy (herein called "Limited Term Energy
(Firm)") to the other party at the delivery point or points
set forth in Section 4.01 of Article 4 of the Agreement in
any amount up to and including the number of kilowatts
reserved. However, in the event conditions arise during such
period which could not have been reasonably foreseen at the
time said power was reserved and such conditions would cause
the delivery of Limited Term Energy (Firm) to be burdensome
to the supplying party, the supplying party may, upon notice
to the reserving party reduce or interrupt the delivery of
such energy to preserve the integrity of, or to prevent or
limit any instability on, its system.
2.13 The Limited Term Power (Firm) billing demand for any period
shall be taken as equal to the number of kilowatts reserved
as Limited Term Power (Firm) for such period.
SECTION 3 - COMPENSATION
3.1 The party reserving Limited Term Power (Firm) shall pay the
supplying party the following Demand Charges:
3.11 MONTHLY LIMITED TERM POWER (FIRM) -- For any month that
Limited Term Power (Firm) is reserved, up to $5.50 per
kilowatt reserved; less, for each day during any part of
which the amount of Monthly Limited Term Power (Firm) is
reduced upon notice from the supplying party, one-twentieth
(1/20) of the supplying party's monthly demand rate per
kilowatt for each kilowatt of reduction but not more than the
rate agreed upon for each kilowatt per month.
3.12 THIRD PARTY MONTHLY LIMITED TERM POWER (FIRM) -- For any
month that Monthly Limited Term Power (Firm) is reserved from
a Third Party by the supplying party for and at the request
of the receiving party, such Monthly Limited Term Power
(Firm) shall be supplied at the rate of up to $1.28 per
kilowatt reserved per month plus the demand charge paid
therefore by the supplying party to the Third Party. In the
event the amount of Monthly Limited Term Power (Firm)
reserved from a Third Party is reduced upon the request of
the Third Party, the demand charge for each day during which
such reduction is in effect shall be reduced by the amount by
which the demand charge payable by the supplying party is
reduced under its Agreement with such Third Party plus,
one-thirtieth (1/30) of the rate per kilowatt agreed upon
under this paragraph for each kilowatt of reduction per day,
but not more than the rate agreed upon for each kilowatt per
month.
3.2 The reserving party shall pay the supplying party for all Monthly
Limited Term Energy (Firm) delivered at the following rates:
3.21 For each kilowatthour that is generated by the supplying
party's system, 100 percent of the out-of-pocket costs for
supplying Limited Term Energy (Firm) called for during such
period, plus 10 percent of such costs.
3.22 For each kilowatthour purchased by the supplying party from a
Third Party in order to supply the Limited Term Energy (Firm)
called for during such period, 100 percent of the amount of
the Energy charge paid therefore by the supplying party plus
1 mill per kilowatthour plus any transmission losses.
EXHIBIT VI
SERVICE SCHEDULE F
DIVERSITY POWER
SECTION 1 - DURATION
1.1 This Service Schedule, being a part of an agreement dated as of
December 1, 1981, between Indianapolis Power & Light Company ("IPL") and
Hoosier Energy Rural Electric Cooperative, Inc. ("Hoosier") (the
"Agreement") shall become effective on the Interconnection Date as
defined in Article 9 of the Agreement and shall continue in effect until
termination of the Agreement.
SECTION 2 - DIVERSITY POWER
2.1 From time to time, because of differences in load patterns one of
the parties hereto may have excess capacity during one seasonal load
period at the same time the other party is experiencing its peak load
season. At such time it may be to the parties' mutual advantage to
schedule exchange of certain portions of any such excess capacity. Such
capacity shall be termed and is herein called "Diversity Power".
2.2 At any time Diversity Power transactions are agreed upon between
the parties, the party which purchases Diversity Power during one
seasonal load period shall be obligated to have available a like amount
of Diversity Power for the other party during the other seasonal load
period. Seasonal load period shall mean for the Summer seasonal load
Period, the months of April thru September and for the Winter seasonal
load period, the months of October thru March.
2.3 The party supplying Diversity Power shall provide reserve capacity
for the committed amount, equivalent to that provided for its own
customers, exclusive of customers with interruptible service contracts.
2.4 Energy associated with the reservation of Diversity Power shall be
scheduled by the purchasing party no less than 18 hours in advance of
receiving such energy. Energy receipts for a Monday shall be scheduled
no later than noon of the preceding Friday.
SECTION 3 - COMPENSATION
3.1 Demand Charges - There shall be no demand charge for Diversity Power.
3.2 Energy Charges - Energy shall be billed at out-of-pocket cost plus
ten percent of such cost. In the event that any part of the
out-of-pocket costs includes energy purchased by the supplying Party,
only the energy portion of such purchase cost shall be included. Any
associated charges for demand, transmission, or other burden shall be
excluded.
EXHIBIT VII
SERVICE SCHEDULE G
TEMPORARY TRANSMISSION USE
SECTION 1 - DURATION AND TERMINATION
1.1 This Service Schedule G, being part of Modification No. 3 to the
Agreement dated December 1, 1981 between Indianapolis Power & Light
Company ("IPL") and Hoosier Energy Rural Electric Cooperative, Inc.
("Hoosier") as amended by Modification No. 1 dated June 1, 1982 and
Modification No. 2 dated October 1, 1983 (the "1981 Agreement"), shall
become effective on January 1, 1991 and shall continue in effect unless
it is otherwise terminated in accordance with this Service Schedule G or
Modification No. 3.
1.2 Hoosier may elect to terminate Service Schedule G at any time
during its term. If such election is made prior to December 31, 1995,
Hoosier shall notify IPL at least 30 days in advance of the desired
termination date. If such election is made after December 31, 1995,
Hoosier shall notify IPL at least 1 year in advance of the desired
termination date.
SECTION 2 - SERVICES TO BE RENDERED
2.1 IPL hereby represents that it has, and currently projects that it
will have, sufficient capacity in its transmission system to provide
Hoosier with the transmission service contemplated by this Service
Schedule G. IPL hereby reserves and agrees to make available to Hoosier,
except as otherwise provided in Section 2.5 below, sufficient capacity in
said transmission system to provide for such transmission service
subject, however, to the capacity of such transmission system required to
serve the actual load of IPL's customers now and in the future.
2.2 IPL agrees to provide temporary transmission services to Hoosier
for the purpose of delivering up to 15 MW of power (demand) and energy
from any of the interconnection points between IPL and Hoosier to the tap
point described and referred to in Modification No. 2 as the Honey Creek
Tap Point. This temporary transmission service shall be available at all
times during the term of this Service Schedule G except as stated in
Section 2.5 of this Service Schedule.
2.3 Any power (demand) and energy delivered by IPL to the Honey Creek
Tap Point shall be simultaneously supplied to IPL from Hoosier at any
other interconnection point or points provided for in the 1981 Agreement.
The power and energy shall be adjusted to compensate IPL for electrical
losses incurred in the delivery of such power. Any difference in power
and energy delivered to Hoosier through said tap point and that supplied
by Hoosier to IPL shall be settled for in accordance with Section 3.03 of
the 1981 Agreement.
2.4 The parties shall plan, maintain and operate their respective
systems in accordance with sound engineering and operating practice, so
as to minimize the likelihood of disturbance(s) originating in either
party's system which might cause impairment of the transmission service
provided hereunder.
2.5 The Parties shall plan for continuous unrestricted operation to the
tap point at all times; provided, that either party may interrupt or
restrict service for necessary maintenance, system emergency, or if
either determines that its facilities may be damaged due to excessive
loadings caused by the transmission service provided hereunder. Should
such interruptions or restrictions occur, the parties shall cooperate to
restore such service to normal as soon as practicable. Excessive loads
are current flows exceeding the normal facility ratings with all
facilities in service, or current flows exceeding emergency facility
ratings under contingency conditions. Neither party shall be responsible
to the other party for damage or loss of revenue caused by such
restrictions or interruptions. Excessive loadings shall be verified by
either metering records or mutually agreed upon load flows. Maintenance
outages shall be coordinated between the parties whenever possible.
2.6 IPL shall periodically conduct studies of its future system, and if
such studies indicate problems due to IPL's load growth which may arise
in the future due to the transmission service provided hereunder, shall
as soon as practicable, develop plans and estimates of cost for the
installation of any additional equipment or facilities necessary to
effect a long term solution to such problem so that transmission services
hereunder may be reliably continued, and shall notify Hoosier of such
studies and plans. IPL shall use its best efforts to provide Hoosier
with a three year advance notice of any impending problems.
Upon approval of long term remedial plans by Hoosier, IPL shall proceed
to install required facilities, and upon completion thereof, Hoosier
shall commence reimbursement to IPL of Hoosier's proportionate share of
costs involved in designing and installing such facilities which shall be
calculated as a function of variables such as:
a) Share of existing facilities utilized by each party, and;
b) Timing of required capacity with and without Hoosier's 15 MW power
transfer; and
c) Useful life of new facilities, and;
d) Remaining term of Service Schedule, and;
e) Other consequential variables determined at the time when excessive
loadings are observed or mutually projected.
In the event Hoosier does not elect to participate in the remedial plans
prescribed above Hoosier may elect to continue service on a restricted
basis when necessary and on an unrestricted basis at all other times.
SECTION 3 - COMPENSATION
3.1 Electric power measured in kilowatts delivered at the Honey Creek
Tap Point under this Service Schedule shall be billed at $0.92 per
kilowatt month. This demand charge for use of IPL's transmission
facilities shall be on the maximum hourly demand in kilowatts, measured
in the calendar month of billing, and shall be adjusted to compensate IPL
for losses in the IPL system and in the transformer bank used at the
Honey Creek Tap Point.
EXHIBIT VIII
SERVICE SCHEDULE H
SPECIFIC TRANSMISSION SERVICE
SECTION 1 - DURATION AND TERMINATION
1.1 This Service Schedule H, being part of Modification No. 3 to the
Agreement dated December 1, 1981 between Indianapolis Power & Light
Company ("IPL") and Hoosier Energy Rural Electric Cooperative, Inc.
("Hoosier") as amended by Modification No. 1 dated June 1, 1982 and
Modification No. 2 dated October 1, 1983 (the "1981 Agreement"), shall
become effective on January 1, 1991 and shall continue in effect through
December 31, 2010, unless terminated in accordance with this Service
Schedule H or Modification No. 3.
1.2 IPL may elect to terminate Service Schedule H at any time during
its term. If such election is made prior to December 31, 1995, IPL shall
notify Hoosier at least 30 days in advance of the desired termination
date. If such election is made after December 31, 1995, IPL shall notify
Hoosier at least 1 year in advance of the desired termination date.
SECTION 2 - SPECIFIC TRANSMISSION SERVICES TO BE RENDERED AND CONDITIONS
THEREOF
2.1 Hoosier shall provide Transmission Service to IPL for an amount up
to 50 MW from January 1, 1991 through December 31, 1992 and 100 MW
thereafter through December 31, 2010 for power and associated energy over
Hoosier's electrical transmission facilities from its interconnection
with Big Rivers (i.e., the 161 kV interconnection located in Hancock
County, Kentucky at the border with Spencer County, Indiana) to Hoosier's
interconnection with IPL (i.e., the 138 kV interconnection at IPL's
Petersburg Plant in Pike County, Indiana). Such transmission service
shall be available at all times during the term of this Service Schedule
H except as stated in Section 2.4 of this Service Schedule.
2.2 Hoosier hereby represents that it has, and currently projects that
it will have, sufficient capacity in its transmission system to provide
IPL with the transmission service contemplated by this Service Schedule
H. Hoosier hereby reserves and agrees to make available to IPL, except
as otherwise provided in Section 2.4 below, sufficient capacity in said
transmission system to provide for such transmission service subject,
however, to the capacity of such transmission system required to serve
the actual load of Hoosier's members now and in the future and to serve
Wabash Power Association, Inc. and Virginia Power Company under contracts
existing prior to the date of this Service Schedule H.
2.3 The parties shall plan, maintain and operate their respective
systems in accordance with sound engineering and operating practice, so
as to minimize the likelihood of disturbance(s) originating in either
party's system which might cause impairment of the transmission service
provided hereunder.
2.4 The parties shall plan for the continuous, unrestricted operation
of their Interconnection at all times; provided, that either party may
interrupt or restrict service for necessary maintenance, for system
emergencies or if either party determines that its facilities may be
damaged due to excessive loads caused by the transmission service
provided hereunder. Should such interruptions or restrictions occur, the
parties shall cooperate to restore such service to normal as soon as
practicable. Excessive loads are current flows exceeding the normal
facility ratings with all facilities in service, or current flows
exceeding emergency facility ratings under contingency conditions.
Neither party shall be responsible to the other party for damage or loss
of revenue caused by such restrictions or interruptions. Excessive
loadings shall be verified by either metering records or mutually agreed
upon load flows. Maintenance outages shall be coordinated between the
parties whenever possible.
2.5 Hoosier shall periodically conduct studies of its future system.
If such studies indicate problems due to the load growth of Hoosier's
members combined with sales to Wabash Power Association, Inc. and
Virginia Power Company under Contracts existing prior to the effective
date of this Service Schedule H which may arise in the future as the
result of the transmission service provided hereunder, Hoosier shall, as
soon as practicable, develop plans and estimates of cost for the
installation of any additional equipment or facilities necessary to
effect a long-term solution to such problem so that transmission services
hereunder may be reliably continued and shall notify IPL of such studies
and plans. Hoosier shall use its best efforts to provide IPL with a
3-year advance notice of any such impending problems.
Upon approval of long-term remedial plans by IPL, Hoosier shall proceed
to install required facilities, and upon completion thereof, IPL shall
commence reimbursement to Hoosier of IPL's proportionate mutually agreed
upon share of costs involved in designing and installing said facilities
which shall be calculated as a function of the following variables:
a) Share of existing facilities utilized by each party; and
b) Timing of required capacity with and without IPL's 100 MW power
transfer; and
c) Useful life of new facilities; and
d) Remaining term of Service Schedule; and
e) Other consequential variables determined as of when excessive loads
are observed or mutually projected.
In the event IPL does not elect to participate in the remedial plans
prescribed above, IPL may continue service on a restricted basis when
necessary and on an unrestricted basis all other times.
SECTION 3 - COMPENSATION AND BILLING
3.1 Throughout the term of this Service Schedule H the following firm
rates shall apply:
3.11 Demand Charge of $50,000/month for 50 MW transmission
capacity from January 1, 1991 through December 31, 1992 and a
demand charge of $100,000/month for 100 MW of transmission
capacity from January 1, 1993 through December 31, 2010.
3.12 Energy Charge of 1 mill/kWhr used up to a usage rate of 50 MW
per hour from January 1, 1991 through December 31, 1992 and a
usage rate of 100 MW per hour from January 1, 1993 through
December 31, 2010.
3.13 In the event the transmission capacity currently in effect is
reduced upon notice from Hoosier, the demand charge for each
day during which any such reduction is in effect (excluding
Saturdays and Sundays) shall be reduced by one-twentieth
(1/20) of Hoosier's monthly demand rate currently in effect
per kilowatt of reduction, but not more than the demand
charge for that month.
MODIFICATION NO. 4
TO THE
INTERCONNECTION AGREEMENT
BETWEEN
INDIANAPOLIS POWER & LIGHT COMPANY
AND
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
THIS AMENDMENT made and entered into as of the 1st day of January, 1995
by Indianapolis Power & Light Company ("IPL"), being an Amendment to the
Interconnection Agreement between Hoosier Energy Rural Electric
Cooperative, Inc. ("Buyer") and IPL dated December 1, 1981 (the "Agreement").
WITNESSETH:
WHEREAS, IPL and Hoosier Energy Rural Electric Cooperative, Inc., entered
into the Agreement on December 1, 1981, which Agreement has been amended
from time to time;
WHEREAS, the Agreement provides for the sale of power and energy by IPL
under Service Schedules described as:
Service Schedule A Emergency Service
Service Schedule C Interchange Power
Service Schedule D Short Term Power
Service Schedule E Limited Term Power (Firm)
Service Schedule F Diversity Power
WHEREAS, the Agreement provides for the recovery of incremental costs or
"out-of-pocket" costs occasioned by the sale by IPL of electric energy;
WHEREAS, IPL has implemented its Emissions Constrained Dispatch Plan,
attached hereto;
WHEREAS, the rates for Emergency Service, Interchange Power, Short Term
Power, Limited Term Power (Firm), and Diversity Power, do not expressly
include the cost of replacing sulfur dioxide ("SO2") emission allowances
expended in order to provide such energy in compliance with Federal laws
governing SO2 emission;
WHEREAS, IPL desires to amend the Agreement to clarify recovery of out-
of-pocket costs occasioned by the sale of said energy as including the
recovery of the incremental cost of SO2 emission allowances;
NOW, THEREFORE, in consideration of the premises and the terms and
conditions set forth herein; IPL desires to amend the Agreement as
follows:
Section 1. Compensation for SO2 Emission Allowances.
The Buyer shall compensate IPL for the consumption of Sulfur Dioxide
Emissions Allowances ("SO2 Allowances") directly attributed to electric
energy sales by IPL to Buyer under the Service Schedules. Such
compensation shall, at Buyer's option, be made by either supplying IPL
with the number of SO2 Allowances directly attributed to such energy
sales, or by reimbursing IPL for the incremental cost of such number of
SO2 Allowances, rounded to the nearest whole SO2 Allowance.
If Buyer opts to reimburse IPL in cash for SO2 Allowances associated with
Buyer's energy purchases for the month, the cash amount due at billing
will be determined by multiplying the number of SO2 Allowances attributed
to the sale by the incremental cost of the SO2 Allowances, as determined
in Section 2.2, at the time of the sale.
If Buyer opts to reimburse IPL in SO2 Allowances, Buyer will record or
transfer to IPL's account, the number of SO2 Allowances calculated below,
at the time cash settlement for the energy is due. In all cases, Buyer
will transfer to IPL's account the number of SO2 Allowances due IPL for
calendar year no later than January 15 of the following year. "Transfer
to IPL's account" shall mean, for purposes of the Amendment, the transfer
by the USEPA of the requisite number of SO2 Allowances to IPL's Allowance
Tracking System account and the receipt by IPL of the Allowance Transfer
Confirmation.
Section 2. Determination of SO2 Emission Allowances Due IPL.
Section 2.1. Number of SO2 Allowances
The number of SO2 Allowances directly attributed to an energy sale
made by IPL shall be determined for each hour, by determining the
contribution from each of the unit(s) from which the energy sale is
being made for that hour. For each unit, the emission rate in
pounds of SO2 per million Btu will be determined each month, from
fuel sulfur content, control equipment performance, and continuous
emissions monitoring data. The emission rate and the unit heat
rate will be used to determine the SO2 Allowances used per
megawatt-hour ("MWH"). The energy from each unit attributable to
the sale, and the SO2 Allowances per MWH for each unit, will be
used to determine the number of SO2 Allowances attributable to the
sale.
Section 2.2 . Cost of SO2 Allowances
The incremental SO2 Allowance cost used to determine economic
dispatch of IPL's generating units in any month, will also be the
basis used to determine compensation for IPL's energy sales. The
incremental SO2 Allowances cost, in dollars per ton of SO2, shall
be determined each month and will be based on the Cantor Fitzgerald
offer price for SO2 Allowances, or if such is not available, the
another nationally recognized SO2 Allowance trading market price or
market price index, at the beginning of the month. The SO2
Allowance value may be changed at any time during the month to
reflect the more current incremental cost, or market price, for SO2
Allowances. Buyer will be notified of the new SO2 Allowance value
prior to dispatch of IPL energy to Buyer.
Section 3. Effective Date.
This Amendment to the Agreement shall be made effective as of January 1,
1995.
IN WITNESS WHEREOF, IPL has caused the foregoing Amendment to be signed
by its duly authorized officer, effective as of the date set forth above.
INDIANAPOLIS POWER & LIGHT COMPANY
By: /s/ John C. Berlier, Jr.
John C. Berlier, Jr.
Vice President
Resource Planning and Rates
EMISSIONS CONSTRAINED DISPATCH PLAN
Effective January 1, 1995
Economic Dispatch is loading each generating unit so the lowest cost
generation is called upon first to generate the power needed, thereby
minimizing total electric energy generation cost. Emissions Constrained
Dispatch is simply Economic Dispatch where the estimated value of the
SO2 allowances being consumed by a unit is included as a part of the
unit's cost of generation. A lower emitting unit will reflect a
relatively lower emissions cost because it requires fewer sulfur dioxide
(SO2) allowances.
IPL's plan to implement Emissions Constrained Dispatch is to incorporate
SO2 allowance values into the existing Energy Management System (load
dispatching system), which economically dispatches IPL's generation. As
the generation required (load) increases, the available unit with the
lowest incremental cost is dispatched to meet the increase. As the
generation demanded decreases, the unit with the highest incremental cost
is dispatched to reduce its generation, thereby minimizing cost.<F1>
Currently, the Energy Management System uses incremental heat rates, along
with fuel and variable operation costs to determine the incremental cost of
generation on each unit in service. Effective January 1, 1995, SO2
emissions related costs will be included in each unit's incremental cost
prior to the incremental costs being compared to make the unit dispatch.
The incremental SO2 value will be in units of dollars per million British
Thermal Units ($/MMBTU) and computed by the following guidelines:
IPL plans to use EPA (Environmental Protection Agency)
certifiable data for SO2 emission rates in conjunction with
the incremental value of emission allowances to form the
emissions dispatch cost in units of $/MMBTU. Each
generating unit affected by the Clean Air Act will have its
own specific SO2 emissions data input into the Energy
Management System at the beginning of each month. That data
will remain for the month unless projected coal deliveries
for the month have an SO2 value that will change the current
dispatch. The Fuel Supply Organization will notify the System
Operation Office of the projected coal delivery SO2 emission
rate in #SO2/MMBTU, so that a correct So2 emission rate can
be input into the Energy Management System.
<F1> Optimization of unit loadings in the Energy Management
System is constrained by equipment physical limitations such as maximum rate
of load pickup or maximum load reduction rate on a unit as well as
contrained by the maximum and minimum capability of the units.
IPL's Treasury Organization will not less often than the 10th day
of each month supply the IPL System Operation Office the incremental
value of an emission allowance in units of dollars per ton of SO2
based upon the Cantor Fitzgerald asking price for allowances, or
other nationally recognized allowance trading market price, for use
in IPL's emission constrained dispatch on a forward going basis.
Beginning January 1, 1995, the allowance price that will be used
for purposes of IPL's emissions constrained dispatch will be the
asking price for allowances obtained from Cantor Fitzgerald on
December 30, 1994. The Treasury Organization will track the
emission allowance market and if a significant change in
allowance prices occurs within a given month, the Treasury
Organization may provide an updated allowance price value to the
IPL System Operation Office. The updated allowance price will
be entered into the Energy Management System and the economic
dispatch algorithm will be updated accordingly.
The emissions cost will be added with the fuel and variable operating cost
to produce a total dispatch cost. The total dispatch cost will be combined
with the incremental unit heat rate data to produce the total incremental
dispatch cost as calculated by the following formula:
INCREMENTAL COST = (Fuel Cost + Emissions Value Divided By
Variable Operating Cost) X Incremental
Heat Rate
The dimensions for each of the variables is as follows:
Emissions Value, $/MMBTU; Fuel Cost, $/MMBTU; Variable Operating
Cost $/MMBTU; Incremental Heat Rate, MMBTU/MWH; Allowance Value,
$/Allowance; Incremental Cost, $/MWH
The dispatch made using the total incremental cost, including SO2 emissions
related costs, will constitute IPL's Emissions Constrained Dispatch.
Modification No. 5
To
INTERCONNECTION AGREEMENT
Between
INDIANAPOLIS POWER & LIGHT COMPANY
And
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
Dated as of March 31, 1999
MODIFICATION NO. 5
To
INTERCONNECTION AGREEMENT
Between
INDIANAPOLIS POWER & LIGHT COMPANY
And
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
THIS MODIFICATION NO. 5, dated as of this 31st day of March, 1999,
between INDIANAPOLIS POWER & LIGHT COMPANY (hereinafter called
"IPL"), an Indiana corporation, and HOOSIER ENERGY RURAL ELECTRIC
COOPERATIVE, INC. (hereinafter called "Hoosier"), an Indiana
corporation,
WITNESSETH:
0.01 WHEREAS, there is now in force and effect between IPL and
Hoosier an interconnection agreement dated as of December 1, 1981,
as amended by a Modification No. 1 dated June 1, 1982,
Modification No. 2 dated October 1, 1983, Modification No. 3 dated
September 1, 1989, and Modification No. 4 dated January 1, 1995
(such agreement as so amended being hereinafter referred to as the
"1981 Agreement"); and
0.02 WHEREAS, Hoosier desires to reconfigure service to its
customer, Johnson County REMC, at its Honey Creek Substation
served currently by IPL to provide additional reliability and in
anticipation of customer load growth, by adding an electric
substation near the intersection of Smith Valley Road and Mullinix
Road in Johnson County, Indiana (hereinafter referred to as the
"Mullinix Substation"); and
0.03 WHEREAS, IPL agrees to establish an additional tap point
from which to serve Hoosier's customer, Johnson County REMC, at
the Mullinix Substation (hereinafter referred to as the "Mullinix
Tap Point");
0.04 NOW, THEREFORE, in consideration of the premises and of the
mutual covenants set forth herein, the parties agree as follows:
ARTICLE 1
1.01 The 1981 Interconnection Agreement shall be, and the same
hereby is, amended as follows:
A. Article 1 thereof is hereby amended by modifying subsection
1.015 thereof to read as follows:
"1.015 At its Honey Creek and Mullinix Substations, 138,000 volt
three-phase interrupting device; three motor operated supervisory
controlled 138,000 volt switches under IPL's control and
maintenance authority; a transformer of size limited to 20 MVA
unless otherwise agreed; 12,470 volt metering equipment;
supervisory and communication equipment including bank
differential indication to IPL's control center; relaying,
switching, and appurtenant equipment; all of which equipment shall
be subject to the approval of IPL."
By modifying subsection 1.026 thereof to read as follows:
"1.026 At Honey Creek and Mullinix Tap Points, IPL agrees to
make such modifications to its transmission facilities as are
necessary to effect a connection at such Tap Points."
By inserting immediately following the present subsection 1.052
thereof, a new subsection, designated "1.053" to read as follows:
"1.053 The Mullinix Tap Point - that point at which the
facilities provided therefor by Hoosier shall be connected to
modified facilities of IPL.
By modifying subsection 1.08A to read as follows:
"1.08A The parties hereto mutually agree that their respective
systems will not be operated in parallel through the Honey Creek
and Mullinix Tap Points. Electric energy supplied by IPL to
Hoosier at these Tap Points will be used only to temporarily
supply the ultimate customers of Johnson County REMC. Any power
(demand) or energy supplied through the Tap Points shall be
accounted and settled for as if supplied through any of the
interconnection points which exist between the two companies.
This accounting shall include any power (demand) and energy losses
occurring on the IPL system due to the transfer of the energy to
the Honey Creek and Mullinix Tap Points."
B. Article 2 thereof is hereby amended by modifying Section
2.01, subsection G, to read as follows:
"G. the temporary use of IPL transmission facilities to provide
service to Hoosier's Honey Creek and Mullinix Substations which
are not directly connected to its transmission system, in
accordance with Service Schedule G annexed hereto."
C. Article 4 thereof is hereby amended by modifying Section
4.022 to read as follows:
"4.022 At the Honey Creek and Mullinix Tap Points specified in
Section 1.05 above, by 12,470 volt metering equipment to be
installed and maintained by Hoosier ('Honey Creek Metering Point'
and 'Mullinix Metering Point)"
And by modifying Section 4.03 to read as follows:
"4.03 Suitable metering equipment at the metering point provided
in Section 4.02 above shall include electric meters, potential and
current transformers, and such other appurtenances as shall be
necessary to give for each direction of flow the following
quantities:
A. a continuous automatic graphic record of both kilowatts and kilovars,
B. an automatic record of the kilowatthours for each clock hour, and
C. a continuous integrating record of the kilowatthours.
Meter readings taken at the Honey Creek and Mullinix Substations
shall be adjusted by adding such amount as may be necessary to
fully compensate IPL for losses in their respective transformers
and on IPL's system."
D. Article 6 thereof is hereby amended by modifying Section 6.01
to read as follows:
"All bills for amounts owed by one party hereto to the other shall
be due and payable on the fifteenth day of the month next
following the month in which the service was provided, or on the
tenth day following receipt of a bill therefor, which is later.
Interest on unpaid amounts shall accrue at 1/2 percent over the
per annum rate of interest equal to the prime lending rate as may
from time to time be published in The Wall Street Journal under
"Money Rates" and is chargeable from the due date of the bill to
the date of payment. The term 'month' shall mean a calendar month
for the purpose of settlements under this agreement."
E. Article 8 thereof is hereby amended by modifying Section 8.02
to read as follows:
"8.02 With respect to the Honey Creek and Mullinix Tap Points,
Hoosier hereby agrees that IPL shall not be responsible for
disruption of service or loss of continuity in providing service
to the Honey Creek and Mullinix Substations and Hoosier hereby
indemnifies and saves harmless IPL against any claim for injury to
persons and damage to property in any way resulting from or
growing out of any such service disruption or loss of continuity."
F. Service Schedule G is hereby revised and restated as provided
in Exhibit A to this Modification No. 5.
ARTICLE 2
2.01 Except as otherwise specifically provided by this
Modification No. 5 or subsequent modifications, the terms
"Interconnection Point", "Metering Point", and "Delivery Point",
shall include all points at which the parties thereto are
interconnected.
ARTICLE 3
3.01 Except as hereinabove specifically amended, all other terms
and conditions of the 1981 Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Modification No. 5 to be executed by their respective duly
authorized officers as of the day, month and year first written
above.
HOOSIER ENERGY RURAL ELECTRIC COOPERATIVE, INC.
By /s/ J. Steven Smith
J. Steven Smith
President and Chief Executive Officer
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Ramon L. Humke
Ramon L. Humke
President and Chief Operating Officer
EXHIBIT VII
(to the 1981 Agreement)
SERVICE SCHEDULE G
TEMPORARY TRANSMISSION USE
SECTION 1 - DURATION AND TERMINATION
1.1 This Service Schedule G, being part of Modification No. 3 to
the Agreement dated December 1, 1981 between Indianapolis Power &
Light Company ("IPL") and Hoosier Energy Rural Electric
Cooperative, Inc. ("Hoosier") as amended by Modification No. 1
dated June 1, 1982 and Modification No. 2 dated October 1, 1983
(the "1981 Agreement"), shall become effective on January 1, 1991
and shall continue in effect unless it is otherwise terminated in
accordance with this Service Schedule G or Modification No. 3.
1.2 Hoosier may elect to terminate Service Schedule G at any
time during its term. If such election is made prior to December
31, 1995, Hoosier shall notify IPL at least 30 days in advance of
the desired termination date. If such election is made after
December 31, 1995, Hoosier shall notify IPL at least 1 year in
advance of the desired termination date.
SECTION 2 - SERVICES TO BE RENDERED
2.1 IPL hereby represents that it has, and currently projects
that it will have, sufficient capacity in its transmission system
to provide Hoosier with the transmission service contemplated by
this Service Schedule G. IPL hereby reserves and agrees to make
available to Hoosier, except as otherwise provided in Section 2.5
below, sufficient capacity in said transmission system to provide
for such transmission service subject, however, to the capacity of
such transmission system required to serve the actual load of
IPL's customers now and in the future.
2.2 IPL agrees to provide temporary transmission services to
Hoosier for the purpose of delivering up to 20 MW of power
(demand) and energy from any of the interconnection points between
IPL and Hoosier for each of the tap points described and referred
to in the 1981 Agreement as the Honey Creek and Mullinix Tap
Points ("Tap Points"). This temporary transmission service shall
be available at all times during the term of this Service Schedule
G except as stated in Section 2.5 of this Service Schedule.
2.3 Any power (demand) and energy delivered by IPL to the Tap
Points shall be simultaneously supplied to IPL from Hoosier at any
other interconnection point or points provided for in the 1981
Agreement. The power and energy shall be adjusted to compensate
IPL for electrical losses incurred in the delivery of such power.
Any difference in power and energy delivered to Hoosier through
said Tap Points and that supplied by Hoosier to IPL shall be
settled for in accordance with Section 3.03 of the 1981 Agreement.
2.4 The parties shall plan, maintain and operate their
respective systems in accordance with sound engineering and
operating practice, so as to minimize the likelihood of
disturbance(s) originating in either party's system which might
cause impairment of the transmission service provided hereunder.
2.5 The Parties shall plan for continuous unrestricted operation
to the Tap Points at all times; provided, that either party may
interrupt or restrict service for necessary maintenance, system
emergency, or if either determines that its facilities may be
damaged due to excessive loadings caused by the transmission
service provided hereunder. Should such interruptions or
restrictions occur, the parties shall cooperate to restore such
service to normal as soon as practicable. Excessive loads are
current flows exceeding the normal facility ratings with all
facilities in service, or current flows exceeding emergency
facility ratings under contingency conditions. Neither party
shall be responsible to the other party for damage or loss of
revenue caused by such restrictions or interruptions. Excessive
loadings shall be verified by either metering records or mutually
agreed upon load flows. Maintenance outages shall be coordinated
between the parties whenever possible.
2.6 IPL shall periodically conduct studies of its future system,
and if such studies indicate problems due to IPL's load growth
which may arise in the future due to the transmission service
provided hereunder, shall as soon as practicable, develop plans
and estimates of cost for the installation of any additional
equipment or facilities necessary to effect a long term solution
to such problem so that transmission services hereunder may be
reliably continued, and shall notify Hoosier of such studies and
plans. IPL shall use its best efforts to provide Hoosier with a
three year advance notice of any impending problems.
Upon approval of long term remedial plans by Hoosier, IPL shall
proceed to install required facilities, and upon completion
thereof, Hoosier shall commence reimbursement to IPL of Hoosier's
proportionate share of costs involved in designing and installing
such facilities which shall be calculated as a function of
variables such as:
a) Share of existing facilities utilized by each party, and;
b) Timing of required capacity with and without Hoosier's power
transfers; and
c) Useful life of new facilities, and;
d) Remaining term of Service Schedule, and;
e) Other consequential variables determined at the time when
excessive loadings are observed or mutually projected.
In the event Hoosier does not elect to participate in the remedial
plans prescribed above Hoosier may elect to continue service on a
restricted basis when necessary and on an unrestricted basis at
all other times.
SECTION 3 - COMPENSATION
3.1 Electric power measured in kilowatts delivered at the Tap
Points under this Service Schedule shall be billed at $0.92 per
kilowatt month. This demand charge for use of IPL's transmission
facilities shall be on the maximum hourly demand in kilowatts,
measured in the calendar month of billing, and shall be adjusted
to compensate IPL for losses in the IPL system and in the
transformer banks used at the Tap Points.
EXHIBIT 10.14
INDIANAPOLIS POWER & LIGHT
COMPANY SUPPLEMENTAL RETIREMENT PLAN
AND TRUST AGREEMENT FOR A SELECT
GROUP OF MANAGEMENT EMPLOYEES
(AS AMENDED AND RESTATED EFFECTIVE
JANUARY 1, 1999)
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 3
Section 1.01. Accrued Benefit 3
Section 1.02. Actuarial Equivalent 4
Section 1.03. Adjusted Accrued Benefit 4
Section 1.04. Adjusted Preretirement Surviving Spouse
Death Benefit 4
Section 1.05. Administrator 5
Section 1.06. Board 5
Section 1.07. Break In Service 5
Section 1.08. Company 6
Section 1.09. Company Retirement Plan 6
Section 1.10. Compensation 6
Section 1.11. Effective Date 8
Section 1.12. Employer 8
Section 1.13. ERISA 8
Section 1.14. Hour of Service 8
Section 1.15. Maximum Benefit Liability 8
Section 1.16. Normal Retirement Age 13
Section 1.17. Participant 13
Section 1.18. Participant Account 14
Section 1.19. Plan 14
Section 1.20. Plan Year 14
Section 1.21. Post-Tax Adjusted Benefit 14
Section 1.22. Preretirement Surviving Spouse
Death Benefit 17
Section 1.23. Prior Plan 17
Section 1.24. Service 17
Section 1.25. Tax Distributions 18
Section 1.26. Total Disability 18
Section 1.27. Trust Fund 18
Section 1.28. Trustee 19
Section 1.29. Valuation Date 19
Section 1.30. Vested Portion 19
Section 1.31. Participating Employers 20
Section 1.32. Available Net Income 20
Section 1.33. Compensation Committee 21
ARTICLE II PARTICIPATION 21
Section 2.01. Participants 21
Section 2.02. Reemployment 27
ARTICLE III MONTHLY SUPPLEMENTAL PENSION BENEFITS 28
Section 3.01. Senior Executive Officer's
Monthly Supplemental Pension
Benefits 28
Section 3.02. Other Executive Officer's Monthly
Supplemental Pension Benefits 29
Section 3.03. Special Monthly Supplemental
Pension Benefits 30
ARTICLE IV PAYMENT OF RETIREMENT BENEFITS 31
Section 4.01. Entitlement to Retirement Benefits 31
Section 4.02. Non-Vested Benefits 35
Section 4.03. Tax Distribution Payments 36
Section 4.04. Reduction in Accrued Benefit and
Preretirement Surviving Spouse
Death Benefit 41
Section 4.05. Distribution and Recontribution
of Income 46
Section 4.06. One-Time Lump Sum Distribution Election 47
ARTICLE V MONTHLY DEATH BENEFITS 48
ARTICLE VI CONTRIBUTIONS TO THE TRUST FUND 50
Section 6.01. Initial Company Contribution 50
Section 6.02. Annual Company Contribution 50
Section 6.03. Additional Company Contributions 51
Section 6.04. Form of Contribution 51
ARTICLE VII ESTABLISHMENT OF TRUST FUND 52
Section 7.01. Trust Fund 52
Section 7.02. Establishment of Participant Accounts 52
Section 7.03. Allocation of Contributions 53
Section 7.04. Valuations 53
Section 7.05. Reallocation of Excess Participant
Account Balances 54
Section 7.06. Payment of Expenses 55
Section 7.07. Accounting and Record Keeping 56
Section 7.08. Limitation on Liability 57
Section 7.09. Consultation and Indemnification 57
Section 7.10. Litigation 58
Section 7.11. Waiver of Bond 58
ARTICLE VIII INVESTMENT OF TRUST FUND 58
Section 8.01. Management of Trust Fund and
Appointment of Investment Manager 58
Section 8.02. Powers of Trustee 60
ARTICLE IX RESIGNATION, REMOVAL, AND APPOINTMENT
OF SUCCESSOR TRUSTEE 65
Section 9.01. Resignation 65
Section 9.02. Removal 65
Section 9.03. Successor Trustee 66
Section 9.04. Accounting by Trustee 66
Section 9.05. Merger or Consolidation of Trustee 67
ARTICLE X NON-DIVERSION OF TRUST FUND 67
ARTICLE XI ADMINISTRATION 68
Section 11.01. Delegation of Responsibility 68
Section 11.02. Construction of Plan 68
Section 11.03. Tax Information to Participants 69
Section 11.04. Determinations 69
ARTICLE XII MISCELLANEOUS 70
Section 12.01. Amendment or Termination of Plan 70
Section 12.02. Right to Merge Plan 71
Section 12.03. Successors and Assigns 72
Section 12.04. Choice of Law 72
Section 12.05. No Employment Contract 72
Section 12.06. Non-Alienation 72
Section 12.07. Gender and Number 73
Section 12.08. Headings 73
Section 12.09. Payment to Incompetents 73
Section 12.10. Illegal or Invalid Provisions 74
INDIANAPOLIS POWER & LIGHT COMPANY
SUPPLEMENTAL RETIREMENT PLAN AND TRUST
AGREEMENT FOR A SELECT GROUP OF MANAGEMENT EMPLOYEES
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1999)
Pursuant to Section 12.01 of the Indianapolis Power & Light
Company Supplemental Retirement Plan and Trust Agreement for a Select Group
of Management Employees (the "Plan") which was originally executed on
November 1, 1988 by and between Indianapolis Power & Light Company, Inc.
(the "Company") and National City Bank, Indiana (the "Trustee") and last
amended and restated effective March 1, 1996, the Company hereby amends
and completely restates the Plan, effective as of January 1, 1999, as
follows:
WITNESSETH:
WHEREAS, effective May 1, 1983, the Company established the Unfunded
Supplemental Retirement Plan for a Select Group of Management Employees
(the "Prior Plan") which was designed to meet applicable exemptions under
Sections 201(2), 301(a)(3), 401(a)(1) and 4021(b)(6) of ERISA (as hereinafter
defined) and under Department of Labor Regulation Section 2520.104-23; and
WHEREAS, in order to provide the active participants in the Prior Plan
with greater assurance that the benefits provided under such Prior Plan will
be duly made, the Company desires to establish a successor plan and trust
(the "Plan") for the active participants in the Prior Plan (and has
contemporaneously limited their participation in the Prior Plan to preclude
a duplication of benefits) and to transfer thereto sufficient assets to be
held therein and applied against the benefit obligations of the Company under
the terms of the Plan, until paid or returned in accordance with the terms of
this Agreement; and
WHEREAS, in recognition of the management services and other benefits
provided to the Employer (as hereinafter defined) by the key employees who
are Participants (as hereinafter defined) under the Plan, it is the intention
of the Company to make contributions to the Plan in accordance with the terms
of this Agreement; and
WHEREAS, the Plan is not intended to be a tax qualified plan under
Sections 401(a) and 501(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), but is intended to meet and comply with the requirements of
ERISA and shall be interpreted accordingly to effect the intent of the
parties;
NOW, THEREFORE, in consideration of the services which have been and
shall be performed by such Plan Participants, of the premises and of the
mutual covenants herein contained, the receipt and sufficiency of which are
hereby expressly acknowledged, the parties do hereby covenant and agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Accrued Benefit. The term "Accrued Benefit" means the
monthly amount payable to a Participant at age sixty-five (65), based on such
Participant's average Compensation at the date of determination, under
Section 3.01 or Section 3.02, whichever is applicable, multiplied by a
fraction (not to exceed one (1)), the numerator of which is such
Participant's Service at the date of determination and the denominator of
which is the lesser of thirty (30) or the total Service such Participant
would have completed if his employment by the Employer had continued until
his attainment of the Normal Retirement Age; provided, however, that if the
Participant's employment with the Employer is terminated by reason of his
incurring a Total Disability, the fraction described above shall be one (1),
regardless of his Service at the date he incurs a Total Disability.
Section 1.02. Actuarial Equivalent. The term "Actuarial Equivalent"
means the equivalent in value of the aggregate amounts expected to be paid
under different forms of payment under this Plan, on the basis of an assumed
rate of interest of seven percent (7%) and mortality rates under the
Unisex Pension 1984 Mortality Table (UP-84) with no age set back for the
Participant and a three (3) year age set back for the Participant's spouse.
Section 1.03. Adjusted Accrued Benefit. The term "Adjusted Accrued
Benefit" means the Accrued Benefit of each Participant after it is adjusted
in accordance with Section 4.04(a) to reflect any Tax Distributions made to
such Participant and in accordance with Section 4.04(b) to reflect any
distributions made under Section 4.05 and not recontributed to the Plan.
Section 1.04. Adjusted Preretirement Surviving Spouse Death Benefit.
The term "Adjusted Preretirement Surviving Spouse Death Benefit" means the
Preretirement Surviving Spouse Death Benefit of a surviving spouse of a
deceased Participant after it is adjusted in accordance with Section 4.04(a)
to reflect any Tax Distributions made to such deceased Participant or to such
surviving spouse and in accordance with Section 4.04(b) to reflect any
distributions made under Section 4.05 and not recontributed to the Plan.
Section 1.05. Administrator. The term "Administrator" means the
Company, which shall have the sole authority to manage and to control the
operation and administration of this Plan.
Section 1.06. Board. The term "Board" means the Board of Directors
of the Company. Whenever the provisions of this Plan require action by the
Board, it may be taken by the Executive Committee of the Board with the same
force and effect as though taken by the entire Board.
Section 1.07. Break In Service. The term "Break in Service" means
the last calendar day of any consecutive twelve (12) month computation period
as provided in Section 1.24 during which a person completes fewer than five
hundred and one (501) Hours of Service.
Section 1.08. Company. The term "Company" means Indianapolis Power &
Light Company and any successor thereto or predecessor thereof.
Section 1.09. Company Retirement Plan. The term "Company Retirement
Plan" means the Employees'Retirement Plan of Indianapolis Power & Light
Company as now in effect or hereafter amended. The Company Retirement Plan
is not amended or modified in any manner by this Plan, and any benefits
payable to Participants or to their surviving spouses under this Plan shall
have no effect on the benefits payable to Participants or to their surviving
spouses under the Company Retirement Plan.
Section 1.10. Compensation. The term "Compensation" means the base
salary received by a Participant from the Employer for services rendered to
the Employer and bonus payments made to the Participant under the IPALCO
Enterprises, Inc. Annual Incentive Plan; provided, however, that the term
"Compensation" shall also include any current compensation deferred by a
Participant under any qualified or nonqualified plan sponsored or maintained
by the Employer or under any agreement entered into between a Participant and
the Employer, including the IPALCO Enterprises, Inc. Annual Incentive Plan;
provided, further, that any deferred compensation included by the immediate
preceding proviso shall be included as Compensation at the time of the
deferral and not again included as Compensation at the time of payment to the
Participant. For purposes of determining a Participant's Compensation for
a calendar month and notwithstanding anything contained herein to the
contrary, each bonus paid under the IPALCO Enterprises, Inc. Annual Incentive
Plan shall be deemed paid in equal amounts over each of the twelve (12)
calendar months occurring in the calendar year for which such bonus relates
(or, if the Participant was not employed for the entire twelve (12) months of
the calendar year, over each month occurring in the calendar year for which
the bonus relates and during which he completed at least one (1) Hour of
Service). For example, if a bonus of sixty thousand dollars ($60,000) is
paid to a Participant under the IPALCO Enterprises, Inc. Annual Incentive
Plan for the calendar year ending on December 31, 2000, the Participant's
Compensation for each month in 2000 shall include the amount of five thousand
dollars ($5,000) for such bonus, and no amount of such bonus attributable
to the 2000 calendar year shall be included in 2001, regardless of when such
bonus is paid.
Section 1.11. Effective Date. The term "Effective Date" means November
1, 1988.
Section 1.12. Employer. The term "Employer" means the Company, any
entity which is affiliated with the Company within the meaning of Sections
210(b) and 210(c) of ERISA, and any successor thereto or predecessor thereof.
Section 1.13. ERISA. The term "ERISA" means the Employee Retirement
Income Security Act of 1974, as now in effect or hereinafter amended and
shall also include any regulations promulgated thereunder.
Section 1.14. Hour of Service. The term "Hour of Service" means the
hours which are recognized as such under the Company Retirement Plan.
Section 1.15. Maximum Benefit Liability. The term "Maximum Benefit
Liability" means with respect to each Participant Account established
hereunder the lesser of (a) or (b) below:
(a) The greater of:
(i) the present value (as of the date of determination) of
the Vested Portion of a Participant's Adjusted Accrued Benefit (or,
if the payment of monthly benefits has already commenced, the
remaining payments) due under Article IV to the Participant for
whom such Participant Account is established or, if applicable, his
surviving spouse, and
(ii) with respect to a married Participant or the surviving
spouse of a deceased Participant, the present value (as of the date
of determination) of the Adjusted Preretirement Surviving Spouse
Death Benefit (or, if the payment of death benefits has already
commenced, the remaining payments) due under Article V to the
surviving spouse of the Participant for whom such Participant
Account is established.
(b) The present value (as of the date of determination) of the
Vested Portion of a Participant's or, if applicable, his surviving
spouse's Post-Tax Adjusted Benefit (or, if the payment of monthly
benefits has already commenced, the remaining payments) due under
Article IV to the Participant or, if applicable, his surviving spouse
for whom such Participant Account is established.
In calculating the Maximum Benefit Liability as of a determination date, the
following rules are applicable:
(c) Any reductions in the Accrued Benefits and Preretirement
Surviving Spouse Death Benefits of Participants or their surviving
spouses, where applicable, which are to be made as of the date of
determination under Section 4.04 shall be given effect, whether or
not the Tax Distribution payments (or distributions of Available Net
Income not recontributed under Section 4.05) attributable to such
reduction have been made as of the date of calculation; provided,
however, that if such Tax Distribution payment is not ultimately made
by the Company under Section 4.03 (or such distribution of Available
Net Income is not ultimately made under Section 4.05), the reduction
shall not be given effect in any calculations of the Maximum Benefit
Liability of a Participant's Accrued Benefit or Preretirement Surviving
Spouse Death Benefit which are made after the due date of the Tax
Distribution payment (or distribution of Available Net Income); and
(d) The Participant's Adjusted Accrued Benefit and Adjusted
Preretirement Surviving Spouse Death Benefits shall be calculated
based on the Participant's Compensation and Service at the date of
determination and, if the Participant is less than age sixty-five
(65) at the date of determination, shall be calculated based on
the Company Retirement Plan benefit, payable at age sixty-five (65),
accrued on the date of determination.
(e) Once a Participant reaches age sixty-five (65) or he or, if
applicable, his surviving spouse commences pay status under the Plan,
the Maximum Benefit Liability shall be determined based on Subsection
(b) of this Section and without regard to Subsection (a) of this Section
even if it results in a greater amount than the amount determined under
Subsection (a) of this Section.
(f) Unless a Participant or, if deceased, his Surviving Spouse
elects under Section 4.06 to receive the present value of the
Participant's Adjusted Accrued Benefit or Adjusted Preretirement
Surviving Spouse Death Benefits, whichever is applicable, in a single
lump sum payment, the Maximum Benefit Liability shall be determined
without regard to the amount necessary to fund the present value of
such Benefits in a single lump sum payment; provided, however, that
upon the Participant or, if applicable, his Surviving Spouse electing
to receive payments in the form of a single lump sum in accordance with
Section 4.06, the Maximum Benefit Liability shall be recalculated no
later than the fifteenth (15th) calendar day immediately following the
date of the Participant's termination of employment with the Employers
or, if later, from the date on which the election is received by the
Company.
For purposes of making the calculation of present value, the present value
discount rate shall be eight percent (8%), and the mortality assumption
shall be computed in accordance with the 1983 Group Annuity Mortality Table;
provided, however, that for purposes of making a calculation of the required
lump sum amount to be paid under Section 4.06, the applicable interest rate
shall be equal to the product of:
(g) the average annual rate of interest on thirty (30) year
Treasury securities for the twelve (12) month period immediately
preceding the calendar month in which the single lump sum is to be paid,
times
(h) one (1) minus the percentage determined under Section 4.03(b)
for such Participant or, if applicable, his Surviving Spouse.
The Maximum Benefit Liability shall be calculated and certified by an actuary
designated by the Company who is acceptable to the Trustee and who is
enrolled by the Joint Board for the Enrollment of Actuaries.
Section 1.16. Normal Retirement Age. The term "Normal Retirement Age"
means for each Participant age sixty-five (65).
Section 1.17. Participant. The term "Participant" means any individual
designated in Article II of this Plan who is eligible for benefits under this
Plan.
Section 1.18. Participant Account. The term "Participant Account"
means the separate account maintained by the Trustee for each Participant.
Section 1.19. Plan. The term "Plan" means the Indianapolis Power &
Light Company Supplemental Retirement Plan and Trust Agreement for a Select
Group of Management Employees, which is intended to be a continuation of the
Prior Plan with respect to the active participants in the Prior Plan at the
Effective Date.
Section 1.20. Plan Year. The term "Plan Year" means a consecutive
twelve (12) month period beginning on November 1 and ending on October 31.
Section 1.21. Post-Tax Adjusted Benefit. The term "Post-Tax Adjusted
Benefit" means with respect to each Participant or, if applicable, his
surviving spouse the monthly amount that would be needed to be paid to a
Participant or, if applicable, his surviving spouse in any calendar year
for which payments are due under this Plan so that the net amount (without
regard to any applicable withholding) available to the Participant or, if
applicable, his surviving spouse after taking into account applicable
federal, state and local income taxes would be equal to what the net amount
would be if this Plan was a tax-qualified retirement plan under Section
401(a) of the Code and the amount payable to the Participant or, if
applicable, his surviving spouse would be fully taxable and equal to the
amounts determined under Article III or Article V, whichever is applicable,
without regard to the Section 4.04 reductions (other than the reductions
described in Subsection (c) below). A Participant's or, if applicable, his
surviving spouse's Post-Tax Adjusted Benefit shall be redetermined each
January 1 in accordance with the following rules:
(a) For purposes of determining the amount of federal, state and
local income taxes applicable on the amounts payable under this Plan,
it shall be assumed that the Participant or, if applicable, his
surviving spouse
(i) will receive no additional income from any source
during such calendar year and,
(ii) has no personal exemptions and no deductions available,
(iii) if married, will be filing a joint return, and
(iv) if the payment is to be made in a lump sum, the taxes
shall be determined as if the lump sum was spread equally over
the life expectancy of the Participant or Surviving Spouse,
whichever is applicable.
(b) For purposes of determining state and local taxes, the
Participant or, if applicable, his surviving spouse shall be deemed
to be a resident of Marion County, Indiana.
(c) If a Participant or his surviving spouse fails to recontribute
to the Plan the entire amount of Available Net Income distributed to him
under Section 4.05 with respect to a calendar year, the Post-Tax
Adjusted Benefit shall be adjusted in accordance with Subsection (b) of
Section 4.04.
(d) If tax rates are modified in a calendar year after the January
1 determination date, the change in tax rates will not be reflected in
the determination of a Participant's or, if applicable, his surviving
spouse's Post-Tax Adjusted Benefit until the next following January 1;
provided, however, that if on an applicable January 1 determination
date tax rate changes for future calendar years are already established
in the Code, rate changes shall be taken into account for purposes of
Section 1.15.
Section 1.22. Preretirement Surviving Spouse Death Benefit. The term
"Preretirement Surviving Spouse Death Benefit" means the monthly amount
payable to a surviving spouse of a deceased Participant under Article V.
Section 1.23. Prior Plan. The term "Prior Plan" means the Indianapolis
Power & Light Company Unfunded Supplemental Retirement Plan for a Select
Group of Management Employees, as amended through October 31, 1988. The
retired participants or, if applicable, the surviving spouses of deceased
participants in the Prior Plan shall continue to receive their benefits in
accordance with the Prior Plan.
Section 1.24. Service. The term "Service" means the period of
employment of an individual by the Employer and, for purposes of vesting and
benefit accrual, shall be measured in consecutive twelve (12) month
computation periods (hereinafter sometimes referred to as "years") beginning
on the first (1st) calendar day of an individual's employment by the Employer
and anniversaries thereof and disregarding any such periods in which such
individual completes fewer than one thousand (1,000) Hours of Service.
Notwithstanding the above, upon termination of his employment with the
Employer, an individual shall receive credit for a fractional year of Service
for the period from the last such anniversary date.
Section 1.25. Tax Distributions. The term "Tax Distributions"
means the cash payments made by the Company under Section 4.03.
Section 1.26. Total Disability. The term "Total Disability" means a
physical or mental condition which prevents a Participant from performing
his duties for the Employer; provided, however, that a Participant shall not
be deemed to have incurred a Total Disability unless such Participant is
eligible for Disability Retirement under the Company Retirement Plan.
Section 1.27. Trust Fund. The term "Trust Fund" means the trust fund
created hereunder.
Section 1.28. Trustee. The term "Trustee" means the initial Trustee of
the Trust Fund, and any successor acting as Trustee of the Trust Fund.
Section 1.29. Valuation Date. The term "Valuation Date" means each
and every October 31 and December 31.
Section 1.30. Vested Portion. The term "Vested Portion" means the
portion of a Participant's Accrued Benefit, Adjusted Accrued Benefit or Post-
Tax Adjusted Benefit, whichever is applicable, which is vested and
nonforfeitable as determined based on that Participant's Service in
accordance with the following schedule:
Years of Service
Completed by Participant Vested Portion
Less than one (1) year 0%
One (1) year 20%
Two (2) years 40%
Three (3) years 60%
Four (4) years 80%
Five (5) years or more 100%
provided, however, that notwithstanding the above, the Accrued Benefit or, if
applicable, Adjusted Accrued Benefit or Post-Tax Adjusted Benefit of a
Participant shall become one hundred percent (100%) vested and nonforfeitable
upon the Participant's attainment of age sixty-five (65) or upon his
incurring a Total Disability.
Section 1.31. Participating Employers. The term "Participating
Employers" means the Company, IPALCO Enterprises, Inc., Mid-America Capital
Resources, Inc. and any other Employer who has adopted this Plan, whose
participation has been approved by the Company and who has agreed to
reimburse the Company for their pro-rata costs of the benefits provided
under the Plan to their respective employees.
Section 1.32. Available Net Income. The term "Available Net Income"
means, with respect to a Participant for a calendar year, the taxable income
(including all items of ordinary income and capital gains recognized for
federal income tax purposes in that calendar year and reduced by all ordinary
and capital losses recognized for federal income tax purposes in that
calendar year) of the Trust Fund for that calendar year multiplied by a
fraction, the numerator of which is the value of that Participant's
Participant Account at the Valuation Date immediately preceding that calendar
year and the denominator of which is the value of all Participant Accounts
at the Valuation Date immediately preceding that calendar year; provided,
however, that for purposes of these allocations, the value of each
Participant Account shall be decreased by fifty percent (50%) of any
distributions from such Participant Account under Article V and under
Section 4.01 since the applicable Valuation Date. The term "Available Net
Income" shall not include income or loss attributable to any portion of the
Trust Fund that is treated as being owned by a Participant under Sections
671-678 of the Code.
Section 1.33. Compensation Committee. The term "Compensation
Committee" means the Compensation Committee of the Board of Directors of
IPALCO Enterprises, Inc.
ARTICLE II
PARTICIPATION
Section 2.01. Participants. The individuals eligible to participate in
this Plan on the Effective Date shall include only the Senior Executive
Officers and the Other Executive Officers of the Company who are designated
in this Section. Effective January 1, 1999, the Senior Executive Officers
selected to participate in this Plan are as follows:
Name Current Title
John R. Hodowal Indianapolis Power & Light Company
- Chairman of the Board and Chief Executive
Officer; IPALCO Enterprises, Inc. -
Chairman of the Board and President
Ramon L. Humke Indianapolis Power & Light Company
- President and Chief Operating Officer; IPALCO
Enterprises, Inc. Vice Chairman
John R. Brehm Indianapolis Power & Light Company
- Senior Vice President, Finance and
Information Services; IPALCO Enterprises, Inc. -
Vice President and Treasurer
Bryan G. Tabler Indianapolis Power & Light Company
- Senior Vice President, Secretary
and General Counsel; IPALCO Enterprises,
Inc. - Vice President, Secretary and General
Counsel
Ralph E. Canter Indianapolis Power & Light Company
- Senior Vice President, Customer Services
Stephen M. Powell Indianapolis Power & Light Company
- Senior Vice President, Energy Supply
Paul S. Mannweiler Indianapolis Power & Light Company
- Senior Vice President, External Affairs
N. Stuart Grauel IPALCO Enterprises, Inc. - Vice
President, Public Affairs
Gerald D. Waltz Former Indianapolis Power & Light Company -
Senior Vice President, Business
Development (Retired 5-1-98)
Robert W. Rawlings Former Indianapolis Power & Light Company -
Senior Vice President, Electric
Production (Retired 5-1-98)
Maurice O. Edmonds Former IPALCO Enterprises, Inc. -
Vice President, Corporate Affairs
(Retired 5-1-96)
Zane G. Todd Former IPALCO Enterprises, Inc. and
Indianapolis Power & Light Company -
Chairman of the Board and Chief Executive
Officer (Retired 5-01-89)
Robert W. Hill Former IPALCO Enterprises, Inc. -
Vice Chairman (Retired 5-01-91)
Gylith J. Cooper Surviving Spouse of Richard Q.
Cooper - Former Indianapolis Power &
Light Company - Senior Vice President,
Steam System (Retired 5-01-89
and Deceased 4-19-94)
Beverly A. Minter Surviving Spouse of Michael M. Minter - Former
Indianapolis Power & Light Company - Senior
Vice President, Planning and
Engineering (Deceased 12-05-93)
Thomas A. King Former IPALCO Enterprises, Inc. -
Vice President, Corporate Affairs
(Terminated 8/31/92)
Effective January 1, 1999, the Other Executive Officers selected to
participate in this Plan are as follows:
Name Current Title
Joseph A. Gustin Indianapolis Power & Light Company
- Vice President, Information Services
Michael G. Banta Indianapolis Power & Light Company
- Vice President, Financial Strategy
Max Califar Indianapolis Power & Light Company
- Vice President, Human Resources
Kevin P. Greisl Indianapolis Power & Light Company
- Vice President, Business Development
Susan Hanafee IPALCO Enterprises, Inc.- Vice
President, Corporate Affairs
Michael P. Holstein IPALCO Enterprises, Inc. - Vice
President, Strategic Business Initiatives
Donald W. Knight Indianapolis Power & Light Company
- Vice President, Fuel Supply
Steven L. Meyer Indianapolis Power & Light Company
- Treasurer; IPALCO Enterprises,
Inc. - Assistant Treasurer
Stephen J. Plunkett Indianapolis Power & Light Company
- Controller; IPALCO Enterprises, Inc. -
Controller
Joseph A. Slash Indianapolis Power & Light Company
- Vice President, Community and Corporate
Effectiveness
Clark L. Snyder IPALCO Enterprises, Inc. -
Assistant Secretary; Indianapolis Power &
Light Company - Assistant Secretary;
Mid-America Capital Resources, Inc. - Vice
President, Secretary and General Counsel
Thomas A. Steiner Indianapolis Power & Light Company
- Vice President, Internal Audit
William A. Tracy Indianapolis Power & Light Company
- Vice President, Thermal Systems
David J. McCarthy Indianapolis Power & Light Company
- Assistant General Counsel, Washington,
D.C. Office
Michael J. Farmer Store Heat and Produce Energy, Inc.
- President and IPL, Vice President,
Transmission & Distribution
(Terminated August 14, 1998)
Robert A. McKnight, Jr. Former Indianapolis Power & Light
Company - Vice President, Major
Project Management (Retired 4-1-97)
John D. Wilson Former Indianapolis Power & Light
Company - Vice President, Information
Services (Retired 5-1-98)
John C. Berlier, Jr. Former Indianapolis Power & Light
Company - Vice President, Resource
Planning and Rates (Retired 8-1-98)
Wendy V. Yerkes Former Indianapolis Power & Light
Company - Assistant Secretary (Terminated
9-1-97)
Arthur G. Haan Former Indianapolis Power & Light
Company - Vice President, General
Services (Retired 2-01-96)
Michael E. Shriner Former Indianapolis Power & Light
Company - Vice President, Marketing
(Terminated 4-30-95)
Marcus E. Woods Former Indianapolis Power & Light
Company - Vice President, Secretary
and General Counsel; IPALCO Enterprises,
Inc. - Secretary and General Counsel
(Retired 1-01-95)
Arnold A. Gordus Former Indianapolis Power & Light
Company - Assistant Vice President,
Environmental Affairs (Retired 4-30-94)
Donald E. Blue Former Indianapolis Power & Light
Company - Vice President,
Power Production (Retired 5-01-89)
Joseph E. Butler Former Indianapolis Power & Light
Company - Vice President,
Community Affairs and Residential Sales
(Terminated 2/1/91)
Jan E. Lower Former Indianapolis Power & Light
Company - Vice President, Community Affairs
(Terminated 4/30/93)
An Other Executive Officer who is listed above and who subsequently
becomes a Senior Vice President, an Executive Vice President, the President,
Chief Operating Officer, Chief Executive Officer or Chairman of the Board of
the Company or who subsequently becomes a Vice President or Vice Chairman
of the Board of IPALCO Enterprises, Inc. shall be deemed to be a Senior
Officer under this Plan without the necessity of a Plan amendment.
Additional management employees of the Company or officers and
management employees of any other Participating Employer may be added as
Participants to this Plan by action of the Compensation Committee, provided
such corporations have adopted this Plan and each has agreed to reimburse the
Company for their pro-rata costs of the benefits provided under the Plan to
their respective employees. The Committee shall specify whether such
officers or management employees are to be considered Senior Officers or
Other Executive Officers under this Section 2.01.
Section 2.02. Reemployment. Any former Participant whose employment
with the Employer is terminated and who subsequently returns to work for
the Employer after he has a Break in Service shall be reinstated as a
Participant and shall have his prior Service restored in determining his
vested rights and his Accrued Benefits under this Plan; provided, however,
that if a reemployed Participant is receiving monthly benefits under Section
4.01 at the time of his reemployment, such monthly benefits shall cease for
such period as he shall remain employed by the Employer and complete at least
forty (40) Hours of Service per month, and any monthly benefits payable to
him or to his surviving spouse thereafter under Article IV or V, whichever
is applicable, shall be adjusted to reflect any payments previously made to
such Participant before the date he returned to work for the Employer and
any payments made subsequent to the date he returned to work for the Employer
with respect to months in which he fails to complete at least forty (40)
Hours of Service; provided, further, that suspension of benefit payments to
any such reemployed Participant shall be made only after written notice has
been given to him by the Company by personal delivery or certified mail,
and such benefit suspensions shall comply with all requirements imposed
pursuant to Section 2530.203-3 of the Department of Labor regulations
which are incorporated herein by reference.
ARTICLE III
MONTHLY SUPPLEMENTAL PENSION BENEFITS
Section 3.01. Senior Executive Officer's Monthly Supplemental Pension
Benefits. Except as provided by Section 3.03, the monthly supplemental
pension benefits for any Senior Executive Officer shall be equal to sixty
percent (60%) of the average monthly Compensation paid to that Senior
Executive Officer with respect to the thirty-six (36) calendar months, not
necessarily consecutive, during which his Compensation is the highest (or,
if his period of employment with the Employer is less than thirty-six (36)
months, his entire period of employment with the Employer), less the benefits
that would be payable to him for the month he attains age fifty-five (55) or,
if later, the first (1st) month following the date his employment with the
Employer is terminated under the Company Retirement Plan on a single-life
basis regardless of the form in which such benefits are actually paid;
provided, however, that if the Senior Executive Officer's benefits under the
Company Retirement Plan are not payable until his attainment of age
sixty-five (65) because of his not meeting the requirements for early
retirement under the Company Retirement Plan and his employment with the
Employers is terminated before his attainment of age sixty-five (65), his
Company Retirement
Plan benefit offset under this Section shall be equal to the monthly amount
payable at the later of his attainment of age fifty-five (55) or the date on
which his employment with the Employers is terminated on a single life basis
which is the Actuarial Equivalent to the monthly amount payable to him at age
sixty-five (65) on a single life basis under the Company Retirement Plan.
Section 3.02. Other Executive Officer's Monthly Supplemental Pension
Benefits. Except as provided by Section 3.03, the monthly supplemental
pension benefits for any Other Executive Officer shall be equal to fifty
percent (50%) of the average monthly Compensation paid to that Other
Executive Officer with respect to the thirty-six (36) calendar months, not
necessarily consecutive, during which his Compensation is the highest (or,
if his period of employment with the Employer is less than thirty-six (36)
months, his entire period of employment with the Employer), less the benefits
that would be payable to him for the month he attains age fifty-five (55) or,
if later, the first (1st) month following the date his employment with the
Employer is terminated under the Company Retirement Plan on a single-life
basis regardless of the form in which such benefits are actually paid;
provided, however, that if the Other Executive Officer's benefits under the
Company Retirement Plan are not payable until his attainment of age
sixty-five (65) because of his not meeting the requirements for early
retirement under the Company Retirement Plan and his employment with the
Employers is terminated before his attainment of age sixty-five (65), his
Company Retirement Plan benefit offset under this Section shall be equal to
the monthly amount payable at the later of his attainment of age fifty-five
(55) or the date on which his employment with the Employers is terminated on
a single life basis which is the Actuarial Equivalent to the monthly amount
payable to him at age sixty-five (65) on a single life basis under the
Company Retirement Plan.
Section 3.03. Special Monthly Supplemental Pension Benefits. From
time to time the Compensation Committee, in its sole discretion, may provide
for alternative supplemental pension benefits under this Section 3.03 for any
Senior Executive Officer or Other Executive Officer in lieu of, and (in some
cases) not in addition to, the benefits described in Section 3.01 or Section
3.02, whichever Section is applicable, because of special circumstances
relating to such Executive's employment with the Employer. If the
Compensation Committee takes action to add new Participants or to modify the
benefits of current Participants, the action shall designate the name of the
individual and the applicable benefit to be provided for such individual. If
the benefits provided under this Section are offset by the Company Retirement
Plan benefit, the offsets shall be calculated consistent with and in
accordance with the manner the offsets are determined under Sections 3.01 and
3.02.
ARTICLE IV
PAYMENT OF RETIREMENT BENEFITS
Section 4.01. Entitlement to Retirement Benefits. A Participant who
retires or otherwise terminates his employment with the Employer for reasons
other than his death shall be entitled to receive monthly supplemental
pension benefits under this Plan only if:
(a) his employment with the Employer terminates on or after his
attainment of the Normal Retirement Age,
(b) his employment with the Employer terminates by reason of his
incurring a Total Disability, or
(c) his employment with the Employer terminates after his
completion of at least one (1) Year of Service.
The amount of the monthly supplemental pension benefits to which an eligible
Participant is entitled upon his retirement or other termination of
employment shall be equal to the Vested Portion of his Post-Tax Adjusted
Benefit; provided, however, that the amount of a Participant's Post-Tax
Adjusted Benefit shall be redetermined each January 1; provided, further,
that under no circumstances may the Post-Tax Adjusted Benefit payable to a
Participant be less than the Vested Portion of his Adjusted Accrued Benefit
as determined on February 29, 1996. The non-Vested Portion of a
Participant's Post-Tax Adjusted Benefit shall be governed by Section 4.02.
The monthly payments shall begin on the first (1st) calendar day of the
month coinciding with or next following the date on which a Participant
attains his Normal Retirement Age or, if later, the date his employment with
the Employer is terminated and shall continue through the month in which his
death occurs; provided, however, that if a Participant's employment with
the Employer is terminated before his attainment of the Normal Retirement
Age, he may elect with the consent of the Company to have his benefits begin
on the first (1st) calendar day of the month following the date on which his
employment with the Employer is terminated or, if later, the first (1st) day
of the calendar month immediately following his attainment of age fifty-five
(55). If benefit payments to a Participant begin before his attainment of
the Normal Retirement Age, the amount of such Participant's monthly
supplemental pension benefits shall be reduced to the extent and in the same
manner as such payments would be reduced if made from the Company Retirement
Plan; provided, however, that notwithstanding anything contained in this
Section to the contrary, a Participant:
(a) who is:
(i) a Senior Executive Officer or
(ii) an Other Executive Officer specifically designated by
the Compensation Committee, and
(b) who at the date of his employment termination with the
Employer is at least age fifty-five (55) and has completed at least
thirty (30) years of Service shall be eligible to elect the immediate
commencement of his monthly supplemental pension benefits without
reduction; provided, further, that a Participant whose combined age and
Service at the date of his employment termination with the Employer is
at least eighty-five (85) and who has not as of his employment
termination date reached age sixty-two (62) shall under no circumstances
have a reduction in his monthly supplemental pension benefit greater
than twenty-five one-hundredths (0.25) for each calendar month in which
the benefit commencement date precedes the date on which the Participant
would have reached age sixty-two (62). If a Participant is married at
the date his benefit payments are to commence and notwithstanding
anything contained in this Plan to the contrary, his monthly benefits
shall be paid in the form of an actuarially equivalent joint and
survivor annuity determined in the same manner as the Joint and Survivor
Annuity Option under Section 205.50 of the Company Retirement Plan,
unless such Participant, with the written consent of his spouse
witnessed by a Notary Public, elects not to have his benefits paid in
such form.
Payment of benefits under this Section 4.01 shall be made in accordance
with and consistent with the requirements set forth in Section 205 of ERISA;
provided, however, that subject to the applicable spousal consent
requirements contained in Section 205 of ERISA, a Participant may elect for
his benefits to be paid in any actuarially equivalent form of payment which
is available under the Company Retirement Plan (other than a single lump
sum payment).
Section 4.02. Non-Vested Benefits. If a Participant's employment with
the Employer is terminated before his completion of at least five (5) years
of Service, before his attainment of his Normal Retirement Age and not by
reason of his incurring a Total Disability, such Participant shall only be
entitled to the Vested Portion of his Post-Tax Adjusted Benefit, the
non-Vested Portion of his Post-Tax Adjusted Benefit shall be forfeited and
the portion of his Participant Account attributable to the non-Vested Portion
of his Post-Tax Adjusted Benefit shall be reallocated as provided in Section
7.05; provided, however, that if such Participant subsequently returns to
work for the Employer, the non-Vested Portion of his Post-Tax Adjusted
Benefit shall be immediately reinstated, his Participant Account shall be
reestablished and funded in accordance with Section 6.02 and he shall be
entitled to receive monthly supplemental pension benefits upon his subsequent
termination of employment with the Employer to the extent otherwise provided
under this Plan, less any benefits already paid to him under this Plan before
his reemployment with the Employer.
Section 4.03. Tax Distribution Payments. On or before December 20 of
each calendar year in which a Participant or, if applicable, his surviving
spouse is required to take amounts into income for Federal income tax
purposes by reason of his participation in, or eligibility for benefits
(including benefits received under an annuity contract purchased in
accordance with Article X) under this Plan, the Company shall make a Tax
Distribution payment to each Participant or, if applicable, to the surviving
spouse of each deceased Participant equal to the product of:
(a) the amount (excluding amounts paid by the Company under this
Section) which such Participant or, if applicable, his surviving spouse
is required to recognize as income for Federal income tax purposes by
reason of his participation in, or eligibility for benefits under, this
Plan in such calendar year; and
(b) the Participant's marginal individual composite Federal,
Indiana and Marion County income tax rate (based on the Participant's
estimated aggregate Compensation from the Employer during the calendar
year and taking into account the deductibility for Federal income tax
purposes of state and local income taxes, if then allowable, and, except
as otherwise provided below, without regard to Section 1(g) of the Code)
in effect for the calendar year during which the amount described in (a)
above is required to be recognized as income by such Participant; and
(c) one hundred percent (100%) divided by the amount by which
one hundred percent (100%) exceeds the rate in (b) above expressed as a
percent.
The amount of the required Tax Distribution payments shall be certified to
the Company on or before December 10 of each calendar year by the actuary
designated by the Company to calculate the Maximum Benefit Liability under
Section 1.15. For purposes of determining the amount of each Tax
Distribution payment, the amount described in (a) above shall be estimated
by assuming that each Participant, if applicable, shall continue his
employment with the Employer for the remainder of the calendar year, each
Participant's rate of Compensation shall remain unchanged for the remainder
of such calendar year and, if applicable, that the Trust Fund (including the
portion of the Trust Fund attributable to Company contribution made in such
calendar year) shall earn investment income, both realized and unrealized,
for the period of October 31 to December 31 (or, with respect to Company
contributions made after October 31 but before December 31, for the
remainder of period beginning on the date of contribution and ending on
such December 31) of such calendar year at the same rate of return earned
by the Trust Fund for the Plan Year ending on October 31 of such calendar
year; provided, however, that the assumed rate of interest to be applied
against the initial Company contribution made under Section 6.01 shall be
ten percent (10%). Notwithstanding anything contained herein to the
contrary, if before November 1 of a calendar year a Participant or, if
applicable, his surviving spouse files a statement with the Company
certifying that to the best of his or her knowledge all or a portion of his
or her taxable income by reason or his or participation in this Plan shall be
subject to the additional Federal income tax under Section 1(g) of the Code
and provides the Company with information which will enable the actuary
designated by the Company to calculate the additional Federal income tax
under Section 1(g) of the Code resulting from his participation in this
Plan, including his or her estimated taxable income for such calendar year,
the table in Section 1 of the Code to be used by the Participant or, if
applicable, his surviving spouse for his Federal income tax return for such
calendar year and the number of personal exemptions that the Participant or,
if applicable, his surviving spouse intends to claim on his or her Federal
income tax return for such calendar year, the Company shall have its
actuary recalculate the amount of the Tax Distribution payment required
under this Section based on the information provided by the Participant or,
if applicable, his surviving spouse, so that the amount of the Tax
Distribution payment made to the Participant or, if applicable, his surviving
spouse shall equal the estimated tax liability of the Participant or, if
applicable, his surviving spouse for such calendar year by reason of his
participation in this Plan; provided, however, that any adjustments in the
Tax Distribution payments under this sentence shall be limited to adjustments
reflecting the applicability of Section 1(g) of the Code. If the amount
described in (a) above which was estimated for purposes of calculating the
amount of any Tax Distribution payment to a Participant or, if applicable,
his surviving spouse is less than the actual (a) amount, the Company shall
pay to such Participant or, if applicable, his surviving spouse as soon as
practicable after the end of such calendar year and in no event later than
the March 15 immediately following such calendar year during which such
amount was recognized as income an amount equal to the product of:
(d) the amount by which the actual (a) amount exceeded the
estimated (a) amount; and
(e) the rate described in (b) above; and
(f) one hundred percent (100%) divided by the amount by which
one hundred percent (100%) exceeds the marginal individual composite
Federal, Indiana and Marion County income tax rate expressed as a
percent (based on the Participant's estimated aggregate Compensation
from the Employer during the calendar year and taking into account the
deductibility for Federal income tax purposes of state and local income
taxes, if then allowable) in effect for the calendar year during which
such additional Tax Distribution payment is to be made.
If the amount described in (a) above which was estimated for purpose of
calculating the amount of any Tax Distribution payment to a Participant or,
if applicable, his surviving spouse is greater than the actual (a) amount,
the amount of the Tax Distribution payment shall be recalculated by
substituting for the estimated (a) amount the actual (a) amount, and the
amount by which the Tax Distribution payment exceeds the recalculated
amount shall be offset against future Tax Distribution payments due until
exhausted. Notwithstanding anything contained herein to the contrary, Tax
Distribution payments shall not be made by the Company to a married
Participant without the written consent of his spouse witnessed by a Notary
Public.
Section 4.04. Reduction in Accrued Benefit and Preretirement Surviving
Spouse Death Benefit. Each Participant's Accrued Benefit and Preretirement
Surviving Spouse Death Benefit shall be adjusted as follows:
(a) As of the Effective Date and as of each Valuation Date, a
Participant's Accrued Benefit and the Preretirement Surviving Spouse Death
Benefit payable to the surviving spouse of a deceased Participant who dies
while still employed by the Employer shall be reduced to the extent provided
below to reflect the value of each Tax Distribution payment made under
Section 4.03 attributable to his initial Accrued Benefit and the initial
Preretirement Surviving Spouse Death Benefit at the Effective Date and
attributable to increases in the amount of his vested Accrued Benefit or
Preretirement Surviving Spouse Death Benefit. The amount of the Accrued
Benefit and Preretirement Surviving Spouse Death Benefit reduction to be
effected as of the Effective Date shall be determined by multiplying the
Accrued Benefit of a Participant or, if applicable, Preretirement Surviving
Spouse Death Benefit as of the Effective Date which such Participant or, if
applicable, his surviving spouse is required to recognize as income for
Federal income tax purposes in 1988 by a percentage equal to the rate
described in Section 4.03(b) or, if the amount of the 1988 Tax Distribution
payment for the Participant or, if applicable, his surviving spouse was
recalculated in accordance with Section 4.03 based on tax information
provided by the Participant or, if applicable, his surviving spouse, a
percentage equal to the individual composite Federal, Indiana and Marion
County income tax rate used in recalculating the amount of the Tax
Distribution payment under Section 4.03 in 1988 in effect on the Effective
Date. The amount of each Accrued Benefit and Preretirement Surviving Spouse
Death Benefit reduction for each Valuation Date shall be determined by
multiplying any increase in the Adjusted Accrued Benefit of a Participant or,
if applicable, Preretirement Surviving Spouse Death Benefit which as of the
preceding Valuation Date has not yet been recognized as income for Federal
income tax purposes and which such Participant or, if applicable, his
surviving spouse is required to recognize as income for Federal income tax
purposes in the calendar year during which such Valuation Date falls by a
percentage equal to the rate described in Section 4.03(b) in effect on the
Valuation Date as of which the adjustment under this Section is made or, if
the amount of the Tax Distribution payment made in the calendar year during
which the Valuation Date occurs for the Participant or, if applicable, his
surviving spouse was recalculated in accordance with Section 4.03 based on
tax information provided by the Participant or, if applicable, his surviving
spouse, a percentage equal to the individual composite Federal, Indiana and
Marion County income tax rate used in recalculating the amount of the Tax
Distribution payment under Section 4.03 for such calendar year. No reduction
in the Accrued Benefits and Preretirement Surviving Spouse Death Benefits of
a Participant or, if applicable, his surviving spouse shall be made under
this Section with respect to Tax Distribution payments which are not
attributable to increases in the Accrued Benefits or Preretirement Surviving
Spouse Death Benefits. Notwithstanding anything contained herein to the
contrary, if the Tax Distribution payments required under Section 4.03
attributable to such Participant's Accrued Benefit or Preretirement Surviving
Spouse Death Benefit, or increase therein, are not timely paid by the
Company, the amount of the reduction in such Participant's Accrued Benefit
or Preretirement Surviving Spouse Death Benefit shall be retroactively
reinstated as of the date on which the reduction was made.
(b) In the event a Participant fails to recontribute to the Plan the
entire amount of Available Net Income distributed to him under Section 4.05
with respect to a calendar year, his Accrued Benefit and Preretirement
Surviving Spouse Death Benefit shall be reduced as of the date such
distribution is treated under Section 4.05 as having been made to him by an
amount equal to the product of:
(i) his Accrued Benefit (or Preretirement Surviving Spouse Death
Benefit, as the case may be) as of the December 31 Valuation Date of the
calendar year to which the distribution of Available Net Income relates,
but before any adjustment has been made under Section 4.04(a) with
respect to such calendar year;
times
(ii) a fraction, the numerator of which is the amount of
Available Net Income distributed to the Participant (and not
recontributed by him to the Plan) and the denominator of which is the
amount of his Participant Account that has, as of the date of
distribution, been taxed to the Participant for federal income tax
purposes;
provided, however, that a Participant's Accrued Benefit and Preretirement
Surviving Spouse Death Benefit shall not be reduced under this Section
4.04(b) below the Adjusted Accrued Benefit and Adjusted Preretirement
Surviving Spouse Death Benefit accrued by that Participant as of October 31,
1992 without regard to this Section 4.04(b).
Section 4.05. Distribution and Recontribution of Income. The
Administrator shall, as of each January 1 (or the first business day
thereafter if January 1 falls on a weekend), distribute to each Participant
the entire amount of that Participant's Available Net Income for the
immediately preceding calendar year; provided, however, that the amount of
distribution to which a Participant shall be entitled under this Section 4.05
shall be reduced (but not below zero (0)) by the amount of monthly pension
benefits paid to that Participant under this Plan during that immediately
preceding calendar year. Each Participant to whom a distribution is made
under the preceding sentence shall be deemed to have immediately
recontributed such distribution to his Participant Account unless such
Participant elects (by completing, signing and delivering the appropriate
form to the Administrator on the date such distribution is made) to receive
such distribution in a single lump sum cash payment. A Participant who
elects to receive the entire amount of his Available Net Income in a single
lump sum cash payment shall receive a distribution of such amount as soon
after the Administrator receives his election as is administratively
feasible (but no later than sixty-five (65) days after the end of the
immediately preceding calendar year) and shall have his Adjusted Accrued
Benefit and Preretirement Surviving Spouse Death Benefit and his Post-Tax
Adjusted Benefit reduced in accordance with Section 4.04(b). For all
purposes of this Plan, any distribution under the preceding sentence shall
be treated as having been made on January 1 (or the first business day
thereafter if January 1 falls on a weekend) regardless of when the
Participant actually receives a lump sum payment of such distribution.
The Trustee may, in its sole discretion, elect each year on the appropriate
Internal Revenue Service form to have each distribution under this Section
4.05 treated as having been made in the taxable year of the Trust Fund that
ends within sixty-five (65) days prior to the date on which such distribution
is actually made.
Section 4.06. One-Time Lump Sum Distribution Election. In lieu of
receiving the monthly retirement benefits otherwise payable under this
Article IV or, if applicable, benefits payable to his Surviving Spouse under
Article V, a Participant who has completed at least one (1) Hour of Service
on or after January 1, 1999 or, if applicable, his Surviving Spouse shall, on
a one-time basis, be entitled to receive the present value of his Post-Tax
Adjusted Benefit in a single lump sum payment. The lump sum election must be
made within thirty (30) calendar days of the date of the Participant's
termination of employment with the Employers or, if applicable, the
Participant's death. The lump sum payment shall be required to be made
within thirty (30) calendar days of the date on which the election is
received by the Company.
ARTICLE V
MONTHLY DEATH BENEFITS
If any Participant shall die while still employed by the Employer, such
deceased Participant's surviving spouse, if any, shall be entitled to receive
monthly death benefits ("Preretirement Surviving Spouse Death Benefits")
under this Plan equal to fifty percent (50%) of such deceased Participant's
average monthly Compensation with respect to the last thirty-six (36)
consecutive months (or, if lesser, the deceased Participant's entire period
of employment with the Employer) ending on or before his death, less the
monthly benefits payable to such deceased Participant's surviving spouse for
that month under the Company Retirement Plan; provided, however, that the
monthly Preretirement Surviving Spouse Death Benefits shall be reduced,
where applicable, so that they are actuarially equivalent to the monthly
death benefits that would be payable for the life of an individual who is the
same age and sex as the Participant at the date of his death; provided,
further, that the amount of the monthly Preretirement Surviving Spouse Death
Benefits shall be adjusted to a Post-Tax Adjusted Benefit (as determined in
accordance with Section 1.21). For purposes of determining actuarial
equivalency under this Article V, a seven percent (7%) interest assumption
and the 1971 Group Annuity Mortality Table shall be used. The monthly
payments shall begin on the first (1st) calendar day of the month coinciding
with or next following a Participant's death and shall continue through the
month in which the surviving spouse's death occurs. Notwithstanding
anything contained in this Article V to the contrary, the surviving spouse
of a deceased Participant who immediately before his death met the
requirements for benefits under Section 4.01 shall be entitled to a
qualified preretirement survivor annuity (as such term is defined in Section
205(e) of ERISA) with respect to such deceased Participant's Adjusted
Accrued Benefit in lieu of the monthly death benefits otherwise provided
under this Article if payment in such form would result in a greater monthly
benefit to such surviving spouse.
ARTICLE VI
CONTRIBUTIONS TO THE TRUST FUND
Section 6.01. Initial Company Contribution. On or before December 10,
1988, the Company contributed to the Trust Fund with respect to each
Participant Account established hereunder as of the Effective Date an amount
equal to the Maximum Benefit Liability of such Participant Account
(determined as of the Effective Date).
Section 6.02. Annual Company Contributions. The Maximum Benefit
Liability for each Participant Account established hereunder shall be
re-computed as of each October 31. If the balance credited to a Participant
Account as of any October 31 is less than the Maximum Benefit Liability of
such Participant Account as of such date after the allocation of income and
the reallocation of excess Participant Account balances are completed for
such Valuation Date under Sections 7.04 and 7.05 respectively, the Company
shall within forty (40) calendar days after such October 31 contribute to the
Trust Fund the amount of the deficiency. In addition, the Company shall fund
within fifteen (15) calendar days any increase in the Maximum Benefit
Liability of a Participant Account as a result of a lump sum election made
under Section 4.06.
Section 6.03. Additional Company Contributions. The Company may
at any time or from time to time make additional contributions of cash or
other property to the Trust Fund.
Section 6.04. Form of Contribution. The Company's contributions
under Sections 6.01, 6.02 and 6.03 shall be paid directly by the Company to
the Trustee in cash or, at the option of the Company, in any other form
permissible under ERISA and acceptable to the Trustee; provided, however,
that the Company shall be permitted to meet all or any portion of its funding
requirements by transferring to the Trust Fund insurance policies insuring
the life of one (1) or more Participants in which case the value of the
insurance policies shall be determined based on their respective cash
surrender values.
ARTICLE VII
ESTABLISHMENT OF TRUST FUND
Section 7.01. Trust Fund. The Trustee shall hold all assets contributed
to, or earned by it, under the terms and conditions of this Plan and subject
to applicable requirements under ERISA.
Section 7.02. Establishment of Participant Accounts. The Trustee shall
establish and maintain a Participant Account for each Participant. The
Participant Accounts as established hereunder shall be adjusted as provided
in this Plan. Payment of benefits under Article V and Section 4.01 shall be
charged against the Participant Account of the Participant for whom the
payments are attributable. The maintenance of the Participant Accounts is
for accounting purposes only, and a segregation of Trust Fund assets shall
not be required. Any insurance policies held by the Trust Fund in accordance
with this Plan shall be commingled with the other assets of the Trust Fund
and shall not be credited to the Participant Account of the Participant on
whose life the policy is based.
Section 7.03. Allocation of Contributions. Any contributions made
pursuant to Sections 6.01 and 6.02 of this Plan shall be credited to the
Participants Accounts upon which the contribution was based; provided,
however, that if the amount of the Company contribution is less than the
aggregate required contribution for the Participant Accounts for which the
contribution relates, the amount of the contribution to be allocated to each
Participant Account shall be determined by multiplying the amount of the
contribution by a fraction, the numerator of which is the required
contribution for such Participant Account at the date of contribution and
the denominator of which is the aggregate required contributions for all
Participants Accounts (for which the contribution relates) at the date of
contribution; provided, further, that if the amount of Company contribution
is greater than the aggregate required contributions for all Participant
Accounts, the amount of the excess shall be allocated proportionately among
all Participant Accounts in accordance with the respective Maximum Benefit
Liabilities of such Participant Accounts as of the Valuation Date for which
the contribution relates.
Section 7.04. Valuations. As of each Valuation Date, the Trustee
shall adjust the Participant Accounts to reflect contributions,
distributions, income earned, expenses not paid by the Company, increases or
decreases in the value of the Trust Fund assets and all other transactions
since the last preceding Valuation Date. Any income or losses with respect
to the Trust Fund and appreciation or depreciation in Trust Fund assets shall
be allocated proportionally among all Participant Accounts in accordance with
the value of such Participant Accounts at the last preceding Valuation Date;
provided, however, that for purposes of these allocations, each Participant
Account shall be decreased by fifty percent (50%) of any distributions from
such Participant Account under Article V and under Section 4.01 since the
last preceding Valuation Date; provided, further, that gains or losses from
the sale or exchange of capital assets shall be treated as items of income or
loss and shall be allocated to Participant Accounts accordingly.
Section 7.05. Reallocation of Excess Participant Account Balances. If
any Participant Account is liquidated because payments from such Participant
Account have been made in full or because the Participant on whose behalf
the Participant Account was established has terminated his employment with
the Employer before meeting the vesting requirements described in Section
4.01, the entire remaining balance in the liquidated Participant Account
shall be re-allocated as of such Valuation Date as follows:
(a) first, to the extent that other Participant Accounts on such
Valuation Date have balances less than their Maximum Benefit
Liabilities, the amount available for reallocation under this Section
shall be re-allocated proportionally among the Participant Accounts not
fully funded based on the respective amount of the deficiency of each
such Participant Account at such Valuation Date; and
(b) second, any remaining amount to be re-allocated under this
Section shall be allocated proportionally among all outstanding
Participant Accounts based on their Maximum Benefit Liabilities at such
Valuation Date.
Section 7.06. Payment of Expenses. The Trustee shall be entitled to
receive such reasonable annual compensation for its services as shall be
agreed upon between the Company and the Trustee. The Trustee shall also be
entitled to receive payment of all reasonable and necessary expenses in
administering the affairs of the Trust Fund including, without limitation,
all expenses which may be incurred in connection with the establishment and
administration of the Trust Fund, the employment of such administrative,
legal, accounting, actuarial or other expert and clerical assistance as the
Trustee, in its sole discretion, deems necessary or appropriate in the
performance of its duties, unless the Company elects to pay such
compensation or expenses. Any compensation or expenses for which the
Trustee is entitled to payment or reimbursement under this Section shall be
paid out of the Trust Fund to the fullest extent then permitted under ERISA,
unless the Company elects to pay such compensation or expenses.
Section 7.07. Accounting and Record Keeping. The Trustee shall keep
accurate and detailed accounts of all investments, receipts, disbursements
and other transactions relating to each Participant Account, and all such
records shall be open to inspection and audit at all reasonable times by any
person designated by the Company. As soon as practicable after each
Valuation Date, the Trustee shall file with the Company a written report for
each Participant Account setting forth all gains or losses (both realized
and unrealized) and other transactions relating to the Trust Fund since the
last preceding Valuation Date. As soon as practicable after each Valuation
Date, the Trustee shall provide each Participant with a statement of the
balance credited to his Participant Account at such Valuation Date.
Section 7.08. Limitation on Liability. As long as the Trustee has
performed its duties and met its obligations pursuant to the terms and
conditions of this Plan, it shall have no liability whatsoever to pay any
claims for benefits or expenses or other payments authorized hereunder from
any Participant Accounts, if the assets of such Participant Account shall at
any time be depleted. Except as otherwise provided by ERISA, the duties and
responsibilities of the Trustee shall be governed solely by the terms and
conditions of this Plan, and any amendments thereto.
Section 7.09. Consultation and Indemnification. The Trustee may
consult with counsel, who may, but need not, be counsel to the Company, and
the Trustee shall not be deemed imprudent by taking or refraining from taking
any action in accordance with the opinion of such counsel. The Company
agrees, to the fullest extent then permitted by law, to indemnify and hold
the Trustee harmless from and against any liability which the Trustee may
incur in the administration of the Trust Fund, unless such liability arises
from the Trustee's willful breach of the provisions of this Plan.
Section 7.10. Litigation. The Trustee shall not be required to
commence or defend any litigation or dispute arising in connection with this
Plan, unless the Trustee is first indemnified by the Company against its
prospective costs, expenses and liability, and the Company hereby agrees to
indemnify the Trustee for any such costs, expenses and liability.
Section 7.11. Waiver of Bond. The Trustee shall not be required to
give bond or any other security for the faithful performance of its duties
under this Plan, except such as may be required by a law which prohibits the
waiver thereof.
ARTICLE VIII
INVESTMENT OF TRUST FUND
Section 8.01. Management of Trust Fund and Appointment of Investment
Manager. The Trust Fund shall be managed, invested, and reinvested by the
Trustee, subject, however, to the right of the Company to designate in
writing an investment manager in accordance with Section 402(c)(3) of ERISA
to manage or invest or reinvest the Trust Fund or any part thereof, in which
event the Trustee shall not be liable for the acts or omissions of such
investment manager or have any authority to manage or invest the assets of
the Trust Fund which are subject to management by such investment manager
until said investment manager is dismissed by the Company. Any such
investment manager so designated shall have the same powers and duties with
respect to the management and investment of that portion of the Trust Fund
managed by such investment manager as those granted to the Trustee hereunder,
except to the extent otherwise provided in the instrument designating such
investment manager. Notwithstanding anything contained in this Plan to the
contrary, the Company shall have the right to direct the Trustee to take the
following action with respect to insurance policies:
(a) to maintain or hold insurance policies which are transferred
to the Trust Fund by the Company;
(b) to apply Company contributions to the Trust Fund towards the
purchase of insurance policies or the payment of premiums with respect
to insurance policies transferred to, or purchased by, the Trust Fund;
or
(c) to convert to paid-up form, to surrender for the cash value
thereof or to terminate any insurance policies held by the Trust Fund.
Section 8.02. Powers of Trustee. Except as otherwise provided by
ERISA, the Trustee shall have the following powers in investing the Trust
Fund:
(a) To invest or reinvest all or any part of the Trust Fund in
any real or personal property as the Trustee may deem advisable,
including but not limited to:
(i) any securities normally traded by and obtainable
through a stockbroker or "over the counter" dealer or on a
recognized exchange;
(ii) any shares of an investment company registered under
the Investment Company Act of 1940, as amended;
(iii) any insurance contracts or annuities;
(iv) the deposit of all or any part of the Trust Fund with an
insurer for the payment of interest thereon;
(v) any securities issued or guaranteed by the United States
of America or any of the instrumentalities or states thereof or of
any county, city, town, village, school district or other political
subdivision of any of said states;
(vi) certificates of deposit, time deposits or savings
accounts including, but not limited to, those issued by its own
departments or divisions or related financial institutions;
(vii) commercial paper, money market funds, treasury bills and
similar investments; and
(viii) any combination of (i) through (vii) above and, except
as otherwise provided by ERISA, without being restricted by any
statute or rule of law governing the investments in which a
trustee may invest funds held by it.
(b) To sell or exchange any part of the assets of the Trust Fund.
(c) To vote in person or by proxy the securities and investment company
shares which its holds as Trustee and to delegate such power.
(d) To consent to or participate in dissolutions, reorganizations,
consolidations, mergers, sales, transfers, or other changes in securities
and investment company shares which it holds as Trustee, and, in such
connection, to delegate its powers and to pay all assessments, subscriptions,
and other charges relating thereto.
(e) To exercise all rights, privileges, options and elections with
respect to any insurance policies and to pay the premiums thereon; provided,
however, that any action taken by the Trustee with respect to any such
insurance contracts, including the payment of premiums, shall be subject to
the approval of the Company.
(f) To retain in cash and keep unproductive of income such amount as
the Trustee may deem advisable in its sole discretion, and the Trustee shall
not be required to pay interest on such cash balances or on cash in its hands
pending investment.
(g) To sell, exchange, convey or transfer any property at any time held
by the Trustee upon such terms as it may deem advisable, and no person
dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the propriety of any such transaction.
(h) To enter into, compromise, compound and settle any debt or
obligation due to or from the Trustee and to reduce the rate of interest on,
to extend or otherwise modify or to foreclose upon, default or otherwise
enforce any such obligation.
(i) To cause any bonds, stocks or other securities held by the Trustee
to be registered in or transferred into its name as Trustee or the name of
its nominee or nominees or to hold them unregistered or in form permitting
transferability by delivery, but at all times with full responsibility
therefor as Trustee.
(j) To manage, administer, operate, repair, improve and mortgage or
lease for any number of years, regardless of any restrictions on leases made
by trustees, or otherwise to deal with any real property or interest therein;
to renew or extend or to participate in the renewal or extension of any
mortgage, and to agree to the reduction in the interest on any mortgage or
other modification or change in terms of any mortgage or guarantee thereof
in any manner and upon such terms as may be deemed advisable; to waive any
defaults whether in performance of any covenant or condition of any mortgage
or in the performance of any guarantee or to enforce any such default in such
manner as may be deemed advisable, including the exercise and enforcement of
any and all rights of foreclosure.
(k) To make, execute and deliver as Trustee any and all deeds,
leases, mortgages, advances, contracts, waivers, releases or other
instruments in writing necessary or proper in the employment of any of the
foregoing powers.
(l) To settle, compromise or abandon all claims and demands in favor
of or against the Trust Fund.
(m) To exercise, generally, any of the powers which an individual
owner might exercise in connection with any property, either real, personal
or mixed, held by the Trust Fund, and to do all other acts which the Trustee
may deem necessary or proper to carry out any of the powers set forth in this
Article or otherwise in the best interests of the Trust Fund and the
Participants.
ARTICLE IX
RESIGNATION, REMOVAL, AND APPOINTMENT
OF SUCCESSOR TRUSTEE
Section 9.01. Resignation. The Trustee may resign upon sixty (60)
calendar days' prior notice in writing to the Company. Such prior written
notice may be waived by the Company.
Section 9.02. Removal. The Company may remove the Trustee, with or
without cause, upon sixty (60) calendar days' prior written notice to the
Trustee. Such prior written notice may be waived by the Trustee.
Section 9.03. Successor Trustee. Upon the resignation or removal of
the Trustee or inability of the Trustee for any reason to perform its duties
hereunder, the Company shall promptly appoint a successor Trustee, which
shall be a national bank or a state bank having its deposits insured by the
Federal Deposit Insurance Corporation, having capital and surplus of at least
fifty million dollars ($50,000,000). Any such successor Trustee shall have
the same powers and duties as those conferred upon the initial Trustee
hereunder and shall evidence its acceptance of such appointment by written
instrument addressed to the Company. Upon written notice from the Company of
the acceptance of such appointment by the successor Trustee, the Trustee
shall promptly assign, transfer and pay over the Trust Fund to such successor
Trustee; provided, however, that the Trustee may reserve such sum of money as
it shall deem advisable for payment of its fees and expenses in connection
with the settlement of its account or otherwise.
Section 9.04. Accounting by Trustee. Within sixty (60) calendar days
after the date or resignation or removal of the Trustee, the Trustee shall
furnish a written accounting of the Trust Fund with respect to the period
since the last Valuation Date to the Company, and to the successor Trustee,
which report shall set forth all investments, receipts, disbursements, and
other transactions during such period.
Section 9.05. Merger or Consolidation of Trustee. If the Trustee
shall at any time merge or consolidate with or shall sell or transfer all or
substantially all of its assets and business to another corporation, state
or federal, the corporation resulting therefrom shall be Trustee hereof in
lieu of its predecessor in interest without the execution of any instrument
and without action on the part of the Company; provided, however, that such
successor corporation shall be qualified under the laws of the State of
Indiana to undertake the duties of the Trustee hereunder.
ARTICLE X
NON-DIVERSION OF TRUST FUND
Except as otherwise expressly provided in this Plan and then permitted
by ERISA, the Company shall not have the right or power to direct the Trustee
to return all or any part of the Trust Fund to the Company or to divert to
others any of the assets held in the Trust Fund until all Accrued Benefits
or Preretirement Surviving Spouse Death Benefits under this Plan have been
paid in full or satisfied by the purchase and delivery of single premium
non-transferable deferred annuity contracts.
ARTICLE XI
ADMINISTRATION
Section 11.01. Delegation of Responsibility. The Administrator may
delegate duties involved in the administration of this Plan to the
Compensation Committee or to the Executive Committee of the Board or to such
other person or persons whose services are deemed necessary or convenient.
However, the ultimate responsibility for the administration of this Plan
shall remain with the Administrator.
Section 11.02. Construction of Plan. The Compensation Committee shall
have the power to construe this Plan and to determine all questions of fact
or law arising under it. It may correct any defect, supply any omission or
reconcile any inconsistency in this Plan in such manner and to such extent as
it may deem expedient. Except as otherwise permitted by ERISA, all acts and
determinations of the Compensation Committee shall be final and conclusive on
the Participants and on the surviving spouses of any deceased Participants
and shall not be subject to appeal or review except in those instances where
the Compensation Committee, in its sole discretion, refers such matter to the
Board.
Section 11.03. Tax Information to Participants. The Administrator
shall timely provide necessary tax information to the Plan Participants
relating to their participation in this Plan to enable the Participants to
report properly any income required to be recognized by the Participants.
Section 11.04. Determinations. The Company shall make all
determinations as to the right of any person to a benefit. Any denial by
the Company of a claim for benefits under this Plan by a Participant or by
any deceased Participant's surviving spouse shall be stated in writing by the
Company and delivered or mailed within ninety (90) calendar days to the
Participant or to such deceased Participant's surviving spouse; and such
notice shall comply with all requirements imposed by ERISA and shall set
forth the specific reasons for the denial, written to the best of the
Company's ability in a manner that may be understood without legal or
actuarial counsel. In addition, the Company shall afford a reasonable
opportunity to any Participant or to such deceased Participant's surviving
spouse whose claim for benefits has been denied for a review of its decision
denying the claim in accordance with Section 503 of ERISA.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Amendment or Termination of Plan. This Plan may be
amended, modified, supplemented in any respect or terminated by action of the
Compensation Committee if the continued operation of this Plan is deemed
imprudent by the Compensation Committee as a result of changes in the law or
other circumstances outside of the control of the Company; provided, however,
that no amendment, modification, supplement or termination of this Plan shall
have the effect of:
(a) discontinuing, reducing or eliminating:
(1) the Post-Tax Adjusted Benefit of a Participant or, if
applicable, his surviving spouse, or
(2) any optional form of distribution permitted under this
Plan;
(b) substantially increasing the duties of the Trustee without its
prior written consent;
(c) permitting a reversion of Trust Fund assets to the Company
before the benefits provided under this Plan have been paid in full or
otherwise satisfied as provided in Article X; or
(d) discharging the Company from its obligation to make the Tax
Distribution payments provided under Section 4.03.
Section 12.02. Right to Merge Plan. The Company reserves the right,
by action of its Board, to merge or to consolidate this Plan with, or to
transfer the assets or liabilities of this Plan to, any other similar
retirement plan at any time, except that no such merger, consolidation or
transfer shall be authorized unless each Participant would receive a benefit
immediately after the merger, consolidation or transfer (if the merged,
consolidated or transferred plan then terminated) equal to or greater than
the benefit to which he would have been entitled immediately before the
merger, consolidation or transfer (if this Plan then terminated).
Section 12.03. Successors and Assigns. This Plan shall be binding upon
the successors and assigns of the Company.
Section 12.04. Choice of Law. Except as otherwise required by ERISA,
this Plan shall be construed and interpreted pursuant to, and in accordance
with, the laws of the State of Indiana.
Section 12.05. No Employment Contract. This Plan shall not be
construed as an agreement, consideration or inducement of employment or as
affecting in any manner the rights or obligations of the Employer or of any
Participant to continue or to terminate the employment relationship any time.
Section 12.06. Non-Alienation. Neither a Participant nor his spouse
shall have any right to anticipate, to pledge, to alienate or to assign any
rights under this Plan, and any effort to do so shall be null and void. The
monthly benefits payable under this Plan shall be exempt from the claims of
creditors or other claimants and from all orders, decrees, levies and
executions and any other legal process to the fullest extent then permitted
by law. The preceding sentences shall also apply to the creation, assignment
or recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order, unless such order is
determined to be a qualified domestic relations order as defined in Section
206(d) of ERISA.
Section 12.07. Gender and Number. Words in the masculine gender shall
be construed to include the feminine gender in all cases where appropriate;
words in the singular or plural shall be construed as being in the plural or
singular in all cases where appropriate.
Section 12.08. Headings. The headings in this Plan are solely for
convenience of reference and shall not affect its interpretation.
Section 12.09. Payment to Incompetents. If any Participant or
surviving spouse of a deceased Participant, entitled to benefits under this
Plan is, in the judgment of the Company, legally, physically or mentally
incapable of personally receiving and receipting for any payment due
hereunder, payment may be made to the guardian or other legal representative
of such Participant or such surviving spouse.
Section 12.10. Illegal or Invalid Provisions. If any provision of this
Plan or the application of any such provision to any person or circumstance
shall be invalid under any law of the United States of America or of any
State or any political subdivision thereof, neither the application of such
provision to persons or circumstances other than those as to which such
provision is invalid nor any other provisions of this Plan shall be affected
thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement of the Plan to be signed on this 31st day of December, 1998 and
to be effective as of January 1, 1999. The terms of this Amendment and
Restatement only apply to Employees who have completed at least one (1) Hour
of Service on or after January 1, 1999; provided, however, that under no
circumstances shall this Amendment and Restatement reduce the Accrued Benefit
of a Participant to an amount less than the Accrued Benefit in effect for the
Participant as determined on December 31, 1998.
INDIANAPOLIS POWER & LIGHT COMPANY
By: /s/ Otto N. Frenzel III
Otto N. Frenzel III, Chairman
of the Compensation Committee
of the Board
FIRST AMENDMENT TO THE
INDIANAPOLIS POWER & LIGHT COMPANY
SUPPLEMENTAL RETIREMENT PLAN AND TRUST AGREEMENT
FOR A SELECT GROUP OF MANAGEMENT EMPLOYEES
(AS LAST AMENDED AND RESTATED
EFFECTIVE JANUARY 1, 1999)
Pursuant to Section 12.01 of the Indianapolis Power & Light Company
Supplemental Retirement Plan and Trust Agreement for a Select Group of
Management Employees (the "Plan"), as last amended and restated effective
January 1, 1999, the Compensation Committee of the Board of Directors of
IPALCO Enterprises, Inc. ("Compensation Committee") hereby amends Section
4.01 of the Plan to read in its entirety, as follows:
Section 4.01. Entitlement to Retirement Benefits. A Participant
who retires or otherwise terminates his employment with the Employer for
reasons other than his death shall be entitled to receive monthly
supplemental pension benefits under this Plan only if:
(a) his employment with the Employer terminates on or
after his attainment of the Normal Retirement Age,
(b) his employment with the Employer terminates by
reason of his incurring a Total Disability, or
(c) his employment with the Employer terminates after
his completion of at least one (1) Year of Service.
The amount of the monthly supplemental pension benefits to which an eligible
Participant is entitled upon his retirement or other termination of
employment shall be equal to the Vested Portion of his Post-Tax Adjusted
Benefit; provided, however, that the amount of a Participant's Post-Tax
Adjusted Benefit shall be redetermined each January 1; provided, further,
that under no circumstances may the Post-Tax Adjusted Benefit payable to a
Participant be less than the Vested Portion of his Adjusted Accrued Benefit
as determined on February 29, 1996. The non-Vested Portion of a
Participant's Post-Tax Adjusted Benefit shall be governed by Section 4.02.
The monthly payments shall begin on the first (1st) calendar day of the
month coinciding with or next following the date on which a Participant
attains his Normal Retirement Age, or, if later, the date his employment
with the Employer is terminated and shall continue through the month in
which his death occurs; provided, however, that if a Participant's
employment with the Employer is terminated before his attainment of the
Normal Retirement Age, he may elect with the consent of the Company to have
his benefits begin on the first (1st) calendar day of the month following
the date on which his employment with the Employer is terminated or, if
later, the first (1st) day of the calendar month immediately following his
attainment of age fifty-five (55). If benefit payments to a Participant
begin before his attainment of the Normal Retirement Age, the amount of such
Participant's monthly supplemental pension benefits shall be reduced to the
extent and in the same manner as such payments would be reduced if made
from the Company Retirement Plan; provided, however, that notwithstanding
anything contained in this Section to the contrary, a Participant:
(a) who is:
(i) a Senior Executive Officer or
(ii) an Other Executive Officer specifically desgianted
by the Compensation Committee,
and
(b) who at the date of his employment termination with the
Employer is at least age fifty-five (55) and has completed at least
thirty (30) years of Service
shall be eligible to elect the immediate commencement of his monthly
supplemental pension benefits without reduction; provided, further, that an
Other Executive Officer whose combined age and Service at the date of his
employment termination with the Employer is at least eighty-five (85) and
who as of his employment termination date has reached age fifty-five (55)
but has not reached age sixty-two (62) shall under no circumstances have a
reduction in his monthly supplemental pension benefit greater than twenty-
five one-hundredths (0.25) for each calendar month in which the benefit
commencement date precedes the date on which the Participant would have
reached age sixty-two (62). If a Participant is married at the
date his benefit payments are to commence and notwithstanding anything
contained in this Plan to the contrary, his monthly benefits shall be paid
in the form of an actuarially equivalent joint and survivor annuity
determined in the same manner as the Joint and Survivor Annuity Option under
Section 205.50 of the Company Retirement Plan, unless such Participant,
with the written consent of his spouse witnessed by a Notary Public, elects
not to have his benefits paid in such form.
Payment of benefits under this Section 4.01 shall be made in
accordance with and consistent with the requirements set forth in Section
205 of ERISA; provided, however, that subject to the applicable spousal
consent requirements contained in Section 205 of ERISA, a Participant may
elect for his benefits to be paid in any actuarially equivalent form of
payment which is available under the Company Retirement Plan (other than a
single lump sum payment).
This First Amendment to the Plan has been executed on this
14th day of April, 1999 and shall be effective as of January 1, 1999.
COMPENSATION COMMITTEE
OF THE BOARD OF DIRECTORS OF
IPALCO ENTERPRISES, INC.
By: /s/ Otto N. Frenzel III
Otto N. Frenzel III
Its Chairman
SECOND AMENDMENT TO THE
INDIANAPOLIS POWER & LIGHT COMPANY
SUPPLEMENTAL RETIREMENT PLAN AND TRUST AGREEMENT
FOR A SELECT GROUP OF MANAGEMENT EMPLOYEES
(AS LAST AMENDED AND RESTATED
EFFECTIVE JANUARY 1, 1999)
Pursuant to Section 12.01 of the Indianapolis Power & Light Company
Supplemental Retirement Plan and Trust Agreement for a Select Group of
Management Employees (the "Plan"), as last amended and restated effective
January 1, 1999, the Compensation Committee of the Board of Directors of
IPALCO Enterprises, Inc. ("Compensation Committee") hereby amends Section
4.01 of the Plan to read in its entirety, as follows:
Section 4.01. Entitlement to Retirement Benefits. A Participant
who retires or otherwise terminates his employment with the Employer for
reasons other than his death shall be entitled to receive monthly
supplemental pension benefits under this Plan only if:
(a) his employment with the Employer terminates on or
after his attainment of the Normal Retirement Age,
(b) his employment with the Employer terminates by
reason of his incurring a Total Disability, or
(c) his employment with the Employer terminates after
his completion of at least one (1) Year of Service.
The amount of the monthly supplemental pension benefits to which an eligible
Participant is entitled upon his retirement or other termination of
employment shall be equal to the Vested Portion of his Post-Tax Adjusted
Benefit; provided, however, that the amount of a Participant's Post-Tax
Adjusted Benefit shall be redetermined each January 1; provided, further,
that under no circumstances may the Post-Tax Adjusted Benefit payable to a
Participant be less than the Vested Portion of his Adjusted Accrued Benefit
as determined on February 29, 1996. The non-Vested Portion of a
Participant's Post-Tax Adjusted Benefit shall be governed by Section 4.02.
The monthly payments shall begin on the first (1st) calendar day of the
month coinciding with or next following the date on which a Participant
attains his Normal Retirement Age, or, if later, the date his employment
with the Employer is terminated and shall continue through the month in
which his death occurs; provided, however, that if a Participant's
employment with the Employer is terminated before his attainment of the
Normal Retirement Age, he may elect with the consent of the Company to have
his benefits begin on the first (1st) calendar day of the month following
the date on which his employment with the Employer is terminated or, if
later, the first (1st) day of the calendar month immediately following his
attainment of age fifty-five (55). If benefit payments to a Participant
begin before his attainment of the Normal Retirement Age, the amount of such
Participant's monthly supplemental pension benefits shall be reduced to the
extent and in the same manner as such payments would be reduced if made
from the Company Retirement Plan; provided, however, that notwithstanding
anything contained in this Section to the contrary, a Participant who at
the date of his employment termination with the Employer is at least age
fifty-five (55) and whose combined age and Service total at least
eighty-five (85) at the date of his termination of employment shall be
eligible to elect the immediate commencement of his monthly supplemental
pension benefits without reduction. If a Participant is married at the
date his benefit payments are to commence and notwithstanding anything
contained in this Plan to the contrary, his monthly benefits shall be paid
in the form of an actuarially equivalent joint and survivor annuity
determined in the same manner as the Joint and Survivor Annuity Option under
Section 205.50 of the Company Retirement Plan, unless such Participant,
with the written consent of his spouse witnessed by a Notary Public, elects
not to have his benefits paid in such form.
Payment of benefits under this Section 4.01 shall be made in
accordance with and consistent with the requirements set forth in Section
205 of ERISA; provided, however, that subject to the applicable spousal
consent requirements contained in Section 205 of ERISA, a Participant may
elect for his benefits to be paid in any actuarially equivalent form of
payment which is available under the Company Retirement Plan (other than a
single lump sum payment).
This Second Amendment to the Plan has been executed on this
23rd day of February, 2000 and shall be effective as of April 1, 2000.
COMPENSATION COMMITTEE
OF THE BOARD OF DIRECTORS OF
IPALCO ENTERPRISES, INC.
By: /s/ Otto N. Frenzel III
Otto N. Frenzel III
Its Chairman
EXHIBIT 10.16
TERMINATION BENEFITS AGREEMENT
AS AMENDED AND RESTATED, EFFECTIVE JANUARY 1, 1993
This Agreement, dated as of January 1, 1993, by and
among IPALCO ENTERPRISES, INC., an Indiana corporation
having its principal executive offices at 25 Monument
Circle, Indianapolis, Indiana 46204 ("IPALCO"),
INDIANAPOLIS POWER & LIGHT COMPANY, an Indiana
corporation having its principal executive offices at 25
Monument Circle, Indianapolis, Indiana 46204 ("IPL")
(both IPALCO and IPL being collectively referred to
herein as the "Company"), and , an Indiana resident
whose mailing address is (the "Executive").
R E C I T A L S
The following facts are true:
A. The Executive is serving the Company as a key
executive officer, and is expected to continue to make a
major contribution to the profitability, growth, and
financial strength of the Company.
B. The Company considers the continued services of
the Executive to be in the best interests of the Company
and its shareholders, and desires to assure itself of the
availability of such continued services in the future on
an objective and impartial basis and without distraction
or conflict of interest in the event of an attempt to
obtain control of the Company.
C. The Executive is willing to remain in the employ
of the Company upon the understanding that the Company
will provide him with income security upon the terms and
subject to the conditions contained herein if his
employment is terminated by the Company without cause or
if he voluntarily terminates his employment for good
reason.
D. If the Company and Executive entered into one or
more Termination Benefits Agreements prior to this
Agreement (the "Prior Termination Benefits Agreements"),
this Agreement is intended to supersede and replace the
Prior Termination Benefits Agreements.
A G R E E M E N T
In consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the
Company and the Executive agree as follows:
1. Undertaking. The Company agrees to pay to the
Executive the termination benefits specified in paragraph
2 hereof if (a) control of IPALCO is acquired (as defined
in paragraph 3(a) hereof) during the term of this
Agreement (as described in paragraph 5 hereof) and (b)
within three (3) years after the acquisition of control
occurs (i) the Company terminates the employment of the
Executive for any reason other than Cause (as defined in
paragraph 3(b) hereof), death, the Executive's attainment
of age sixty-five (65) or total and permanent disability,
or (ii) the Executive voluntarily terminates his
employment for Good Reason (as defined in paragraph 3(c)
hereof).
2. Termination Benefits. If the Executive is
entitled to termination benefits pursuant to paragraph 1
hereof, the Company agrees to pay to the Executive as
termination benefits in a lump-sum payment within five
(5) calendar days of the termination of the Executive's
employment an amount to be computed by multiplying (i)
the Executive's average annual compensation (as defined
in Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code")) payable by the Company which was
includable in the gross income of the Executive for the
most recent five (5) calendar years ending coincident
with or immediately before the date on which control of
the Company is acquired (or such portion of such period
during which the Executive was an employee of the
Company), by (ii) two hundred ninety-nine and ninety-nine
one hundredths percent (299.99%). For purposes of this
Agreement, employment and compensation paid by any direct
or indirect subsidiary of the Company will be deemed to
be employment and compensation paid by the Company.
3. Definitions.
(a) As used in this Agreement, the
"acquisition of control" means:
(i) The acquisition by
any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person")
of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange
Act) of twenty percent (20%) or more of
either (A) the then outstanding shares of
common stock of IPALCO (the "Outstanding
IPALCO Common Stock") or (B) the combined
voting power of the then outstanding voting
securities of IPALCO entitled to vote
generally in the election of directors (the
"Outstanding IPALCO Voting Securities");
provided, however, that the following
acquisitions shall not constitute an
acquisition of control: (A) any acquisition
directly from IPALCO (excluding an
acquisition by virtue of the exercise of a
conversion privilege), (B) any acquisition
by IPALCO, (C) any acquisition by any
employee benefit plan (or related trust)
sponsored or maintained by IPALCO, IPL or
any corporation controlled by IPALCO or (D)
any acquisition by any corporation pursuant
to a reorganization, merger or
consolidation, if, following such
reorganization, merger or consolidation, the
conditions described in clauses (A), (B) and
(C) of subsection (iii) of this paragraph
3(a) are satisfied;
(ii) Individuals who,
as of the date hereof, constitute the Board
of Directors of IPALCO (the "Incumbent
Board") cease for any reason to constitute
at least a majority of the Board of
Directors of IPALCO (the "Board"); provided,
however, that any individual becoming a
director subsequent to the date hereof whose
election, or nomination for election by
IPALCO's shareholders, was approved by a
vote of at least a majority of the directors
then comprising the Incumbent Board shall be
considered as though such individual were a
member of the Incumbent Board, but
excluding, for this purpose, any such
individual whose initial assumption of
office occurs as a result of either an
actual or threatened election contest (as
such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the
Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(iii) Approval by the
shareholders of IPALCO of a reorganization,
merger or consolidation, in each case,
unless, following such reorganization,
merger or consolidation, (A) more than sixty
percent (60%) of, respectively, the then
outstanding shares of common stock of the
corporation resulting from such
reorganization, merger or consolidation and
the combined voting power of the then
outstanding voting securities of such
corporation entitled to vote generally in
the election of directors is then
beneficially owned, directly or indirectly,
by all or substantially all of the
individuals and entities who were the
beneficial owners, respectively, of the
Outstanding IPALCO Common Stock and
Outstanding IPALCO Voting Securities
immediately prior to such reorganization,
merger or consolidation in substantially the
same proportions as their ownership,
immediately prior to such reorganization,
merger or consolidation, of the Outstanding
IPALCO Stock and Outstanding IPALCO Voting
Securities, as the case may be, (B) no
Person (excluding IPALCO, any employee
benefit plan or related trust of IPALCO, IPL
or such corporation resulting from such
reorganization, merger or consolidation and
any Person beneficially owning, immediately
prior to such reorganization, merger or
consolidation and any Person beneficially
owning, immediately prior to such
reorganization, merger or consolidation,
directly or indirectly, twenty percent (20%)
or more of the Outstanding IPALCO Common
Stock or Outstanding Voting Securities, as
the case may be) beneficially owns, directly
or indirectly, twenty percent (20%) or more
of, respectively, the then outstanding
shares of common stock of the corporation
resulting from such reorganization, merger
or consolidation or the combined voting
power of the then outstanding voting
securities of such corporation entitled to
vote generally in the election of directors
and (C) at least a majority of the members
of the board of directors of the corporation
resulting from such reorganization, merger
or consolidation were members of the
Incumbent Board at the time of the execution
of the initial agreement providing for such
reorganization, merger or consolidation;
(iv) Approval by the
shareholders of IPALCO of (A) a complete
liquidation or dissolution of IPALCO or (B)
the sale or other disposition of all or
substantially all of the assets of IPALCO,
other than to a corporation, with respect to
which following such sale or other
disposition (1) more than sixty percent
(60%) of, respectively, the then outstanding
shares of common stock of such corporation
and the combined voting power of the then
outstanding voting securities of such
corporation entitled to vote generally in
the election of directors is then
beneficially owned, directly or indirectly,
by all or substantially all of the
individuals and entities who were the
beneficial owners, respectively, of the
Outstanding IPALCO Common Stock and
Outstanding IPALCO Voting Securities
immediately prior to such sale or other
disposition in substantially the same
proportion as their ownership, immediately
prior to such sale or other disposition, of
the Outstanding IPALCO Common Stock and
Outstanding IPALCO Voting Securities, as the
case may be, (2) no Person (excluding IPALCO
and any employee benefit plan or related
trust of IPALCO, IPL or such corporation and
any Person beneficially owning, immediately
prior to such sale or other disposition,
directly or indirectly, twenty percent (20%)
or more of the Outstanding IPALCO Common
Stock or Outstanding IPALCO Voting
Securities, as the case may be) beneficially
owns, directly or indirectly, twenty percent
(20%) or more of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of
the then outstanding voting securities of
such corporation entitled to vote generally
in the election of directors and (3) at
least a majority of the members of the board
of directors of such corporation were
members of the Incumbent Board at the time
of the execution of the initial agreement or
action of the Board providing for such sale
or other disposition of assets of IPALCO; or
(v) The closing, as
defined in the documents relating to, or as
evidenced by a certificate of any state or
federal governmental authority in connection
with, a transaction approval of which by the
shareholders of IPALCO would constitute an
"acquisition of control" under subsection
(iii) or (iv) of this section 3(a) of this
Agreement.
Notwithstanding anything contained in this
Agreement to the contrary, if the Executive's
employment is terminated before an "acquisition
of control" as defined in this section 3(a) and
the Executive reasonably demonstrates that such
termination (i) was at the request of a third
party who has indicated an intention or taken
steps reasonably calculated to effect an
"acquisition of control" and who effectuates an
"acquisition of control" (a "Third Party") or
(ii) otherwise occurred in connection with, or in
anticipation of, an "acquisition of control"
which actually occurs, then for all purposes of
this Agreement, the date of an "acquisition of
control" with respect to the Executive shall mean
the date immediately prior to the date of such
termination of the Executive's employment.
(b) As used in this Agreement, the term
"Cause" means fraud, dishonesty, theft of
corporate assets, or other gross misconduct by
the Executive. Notwithstanding the foregoing,
the Executive shall not be deemed to have been
terminated for cause unless and until there shall
have been delivered to him a copy of a resolution
duly adopted by the affirmative vote of not less
than a majority of the entire membership of the
Board at a meeting of the Board called and held
for the purpose (after reasonable notice to him
and an opportunity for him, together with his
counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the
Executive was guilty of conduct set forth above
in the first sentence of the subsection and
specifying the particulars thereof in detail.
(c) As used in this Agreement, the term
"Good Reason" means, without the Executive's
written consent, (i) a demotion in the
Executive's status, position or responsibilities
which, in his reasonable judgment, does not
represent a promotion from his status, position
or responsibilities as in effect immediately
prior to the change in control; (ii) the
assignment to the Executive of any duties or
responsibilities which, in his reasonable
judgment, are inconsistent with such status,
position or responsibilities; or any removal of
the Executive from or failure to reappoint or
reelect him to any of such positions, except in
connection with the termination of his employment
for total and permanent disability, death or
Cause or by him other than for Good Reason; (iii)
a reduction by the Company in the Executive's
base salary as in effect on the date hereof or as
the same may be increased from time to time
during the term of this Agreement or the
Company's failure to increase (within twelve (12)
months of the Executive's last increase in base
salary) the Executive's base salary after a
change in control in an amount which at least
equals, on a percentage basis, the average
percentage increase in base salary for all
executive and senior officers of the Company
effected in the preceding twelve (12) months;
(iv) the relocation of the principal executive
offices of IPALCO or IPL, whichever entity on
behalf of which the Executive performs a
principal function of that entity as part of his
employment services, to a location outside the
Indianapolis, Indiana metropolitan area or the
Company's requiring him to be based at any place
other than the location at which he performed his
duties prior to a change in control, except for
required travel on the Company's business to an
extent substantially consistent with his business
travel obligations at the time of a change in
control; (v) the failure by the Company to
continue in effect any incentive, bonus or other
compensation plan in which the Executive
participates, including but not limited to the
Company's stock option and restricted stock
plans, unless an equitable arrangement (embodied
in an ongoing substitute or alternative plan),
with which he has consented, has been made with
respect to such plan in connection with the
change in control, or the failure by the Company
to continue his participation therein, or any
action by the Company which would directly or
indirectly materially reduce his participation
therein; (vi) the failure by the Company to
continue to provide the Executive with benefits
substantially similar to those enjoyed by him or
to which he was entitled under any of the
Company's pension, profit sharing, life
insurance, medical, dental, health and accident,
or disability plans in which he was participating
at the time of a change in control, the taking of
any action by the Company which would directly or
indirectly materially reduce any of such benefits
or deprive him of any material fringe benefit
enjoyed by him or to which he was entitled at the
time of the change in control, or the failure by
the Company to provide him with the number of
paid vacation and sick leave days to which he is
entitled on the basis of years of service with
the Company in accordance with the Company's
normal vacation policy in effect on the date
hereof; (vii) the failure of the Company to
obtain a satisfactory agreement from any
successor or assign of the Company to assume and
agree to perform this Agreement; (viii) any
purported termination of the Executive's
employment which is not effected pursuant to a
Notice of Termination satisfying the requirements
of paragraph 4(c) hereof (and, if applicable,
paragraph 3(b) hereof); and for purposes of this
Agreement, no such purported termination shall be
effective; or (ix) any request by the Company
that the Executive participate in an unlawful act
or take any action constituting a breach of the
Executive's professional standard of conduct.
Notwithstanding anything in this paragraph
3(c) to the contrary, the Executive's right to
terminate his employment pursuant to this
paragraph 3(c) shall not be affected by his
incapacity due to physical or mental illness.
4. Additional Provisions.
(a) Enforcement of Agreement. The
Company is aware that upon the occurrence of a
change in control the Board of Directors or a
shareholder of the Company may then cause or
attempt to cause the Company to refuse to comply
with its obligations under this Agreement, or may
cause or attempt to cause the Company to
institute, or may institute, litigation seeking
to have this Agreement declared unenforceable, or
may take or attempt to take other action to deny
the Executive the benefits intended under this
Agreement. In these circumstances, the purpose
of this Agreement could be frustrated. It is the
intent of the Company that the Executive not be
required to incur the expenses associated with
the enforcement of his rights under this
Agreement by litigation or other legal action,
nor be bound to negotiate any settlement of his
rights hereunder, because the cost and expense of
such legal action or settlement would
substantially detract from the benefits intended
to be extended to the Executive hereunder.
Accordingly, if following a change in control it
should appear to the Executive that the Company
has failed to comply with any of its obligations
under this Agreement or in the event that the
Company or any other person takes any action to
declare this Agreement void or unenforceable, or
institutes any litigation or other legal action
designed to deny, diminish or to recover from the
Executive the benefits entitled to be provided to
the Executive hereunder and that the Executive
has complied with all of his obligations under
this Agreement, the Company irrevocably
authorizes the Executive from time to time to
retain counsel of his choice, at the expense of
the Company as provided in this paragraph 4(a),
to represent the Executive in connection with the
initiation or defense of any litigation or other
legal action, whether such action is by or
against the Company or any director, officer,
shareholder, or other person affiliated with the
Company, in any jurisdiction. Notwithstanding
any existing or prior attorney-client
relationship between the Company and such
counsel, the Company irrevocably consents to the
Executive entering into an attorney-client
relationship with such counsel, and in that
connection the Company and the Executive agree
that a confidential relationship shall exist
between the Executive and such counsel. The
reasonable fees and expenses of counsel selected
from time to time by the Executive as hereinabove
provided shall be paid or reimbursed to the
Executive by the Company on a regular, periodic
basis upon presentation by the Executive of a
statement or statements prepared by such counsel
in accordance with its customary practices, up to
a maximum aggregate amount of $500,000. Any
legal expenses incurred by the Company by reason
of any dispute between the parties as to
enforceability of or the terms contained in this
Agreement, notwithstanding the outcome of any
such dispute, shall be the sole responsibility of
the Company, and the Company shall not take any
action to seek reimbursement from the Executive
for such expenses.
(b) Severance Pay; No Duty to Mitigate.
The amounts payable to the Executive under this
Agreement shall not be treated as damages but as
severance compensation to which the Executive is
entitled by reason of termination of his
employment in the circumstances contemplated by
this Agreement. The Company shall not be
entitled to set off against the amounts payable
to the Executive any amounts earned by the
Executive in other employment after termination
of his employment with the Company, or any
amounts which might have been earned by the
Executive in other employment had he sought such
other employment.
(c) Notice of Termination. Any purported
termination by the Company or by the Executive
shall be communicated by written Notice of
Termination to the other party hereto in
accordance with paragraph 4(k) hereof. For
purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall
indicate the specific termination provision in
this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances
claimed to provide a basis for termination of his
employment under the provision so indicated. For
purposes of this Agreement, no such purported
termination shall be effective without such
Notice of Termination.
(d) Internal Revenue Code. Anything in
this Agreement to the contrary notwithstanding,
in the event that Deloitte & Touche determines
that any payment by the Company to or for the
benefit of the Executive pursuant to the terms of
this Agreement would be nondeductible by the
Company for federal income tax purposes because
of Section 280G of the Code, then the amount
payable to or for the benefit of the Executive
pursuant to this Agreement shall be reduced (but
not below zero) to the maximum amount payable
without causing the payment to be nondeductible
by the Company because of Section 280G of the
Code. Such determination by Deloitte & Touche
shall be conclusive and binding upon the parties.
(e) Assignment. This Agreement shall
inure to the benefit of and be binding upon the
parties hereto and their respective executors,
administrators, heirs, personal representatives,
successors, and assigns, but neither this
Agreement nor any right hereunder may be assigned
or transferred by either party hereto, any
beneficiary, or any other person, nor be subject
to alienation, anticipation, sale, pledge,
encumbrance, execution, levy, or other legal
process of any kind against the Executive, his
beneficiary or any other person. Notwithstanding
the foregoing, the Company will assign this
Agreement to any corporation or other business
entity succeeding to substantially all of the
business and assets of the Company by merger,
consolidation, sale of assets, or otherwise and
shall obtain the assumption of this Agreement by
such successor.
(f) Entire Agreement. This Agreement
contains the entire agreement between the parties
with respect to the subject matter hereof. All
representations, promises, and prior or
contemporaneous understandings among the parties
with respect to the subject matter hereof,
including any Prior Termination Benefits
Agreements, are merged into and expressed in this
Agreement, and any and all prior agreements
between the parties with respect to the subject
matter hereof are hereby cancelled.
(g) Amendment. This Agreement shall not
be amended, modified, or supplemented without the
written agreement of the parties at the time of
such amendment, modification, or supplement.
(h) Governing Law. This Agreement shall
be governed by and subject to the laws of the
State of Indiana.
(i) Severability. The invalidity or
unenforceability of any particular provision of
this Agreement shall not affect the other
provisions, and this Agreement shall be construed
in all respects as if such invalid or
unenforceable provision had not been contained
herein.
(j) Captions. The captions in this
Agreement are for convenience and identification
purposes only, are not an integral part of this
Agreement, and are not to be considered in the
interpretation of any part hereof.
(k) Notices. Except as otherwise
specifically provided in this Agreement, all
notices and other communications hereunder shall
be in writing and shall be deemed to have been
duly given if delivered in person or sent by
registered or certified mail, postage prepaid,
addressed as set forth above, or to such other
address as shall be furnished in writing by any
party to the others.
(l) Waivers. Except as otherwise
specifically provided in this Agreement, no
waiver by either party hereto of any breach by
the other party hereto of any condition or
provision of this Agreement to be performed by
such other party shall be deemed to be a valid
waiver unless such waiver is in writing or, even
if in writing, shall be deemed to be a waiver of
a subsequent breach of such condition or
provision or a waiver of a similar or dissimilar
provision or condition at the same or at any
prior or subsequent time.
(m) Gender. The use of the masculine
gender throughout this Agreement is solely for
convenience; thus, in cases where the Executive
is female, the feminine gender shall be deemed to
be used in place of the masculine gender.
5. Term of this Agreement. This Agreement shall
remain in effect until January 1, 1998 or until the
expiration of any extension thereof. The term of this
Agreement shall be automatically extended for one (1)
year periods without further action of the parties as of
January 1, 1994 and each succeeding January 1 thereafter,
unless IPALCO shall have served written notice to the
Executive prior to January 1, 1994 or prior to January 1
of each succeeding year, as the case may be, of its
intention that the Agreement shall terminate at the end
of the five (5) year period that begins with the
January 1 following the date of such written notice.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
IPALCO ENTERPRISES, INC.
By:
Attest:
INDIANAPOLIS POWER &
LIGHT COMPANY
By:
Attest:
SCHEDULE A
Name of Employee Date of Agreement
Michael G. Banta July 1, 1995
John R. Brehm January 1, 1993
Max Califar January 1, 1993
Ralph E. Canter May 1, 1995
Kevin P. Greisl May 1, 1998
Joseph A. Gustin May 1, 1998
John R. Hodowal January 1, 1993
Donald W. Knight January 1, 1993
Paul S. Mannweiler January 1, 1997
David J. McCarthy January 1, 1996
Steven L. Meyer January 1, 1993
Stephen J. Plunkett January 1, 1993
Stephen M. Powell May 1, 1998
Daniel L. Short January 1, 2000
Joseph A. Slash January 1, 1993
Bryan G. Tabler October 1, 1994
William A. Tracy May 1, 1998
Exhibit 10.17
TERMINATION BENEFITS AGREEMENT
This Agreement, dated as of January 1, 1997, by and
among IPALCO ENTERPRISES, INC., an Indiana corporation
having its principal executive offices at One Monument
Circle, Indianapolis, Indiana 46204 ("IPALCO"),
INDIANAPOLIS POWER & LIGHT COMPANY, an Indiana
corporation having its principal executive offices at One
Monument Circle, Indianapolis, Indiana 46204 ("IPL")
(both IPALCO and IPL being collectively referred to
herein as the "Company"), and RAMON L. HUMKE, an Indiana
resident whose mailing address is 7624 William Penn
Place, Indianapolis, Indiana 46256 (the "Executive").
R E C I T A L S
The following facts are true:
A. The Executive is serving the Company as a key
executive officer, and is expected to continue to make a
major contribution to the profitability, growth, and
financial strength of the Company.
B. The Company considers the continued services of
the Executive to be in the best interests of the Company
and its shareholders, and desires to assure itself of the
availability of such continued services in the future on
an objective and impartial basis and without distraction
or conflict of interest in the event of an attempt to
obtain control of the Company.
C. The Executive is willing to remain in the employ
of the Company upon the understanding that the Company
will provide him with income security upon the terms and
subject to the conditions contained herein if his
employment is terminated by the Company without cause or
if he voluntarily terminates his employment for good
reason.
D. If the Company and Executive entered into one or
more Termination Benefits Agreements prior to this
Agreement (the "Prior Termination Benefits Agreements"),
this Agreement is intended to supersede and replace the
Prior Termination Benefits Agreements.
A G R E E M E N T
In consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the
Company and the Executive agree as follows:
1. Undertaking. The Company agrees to pay to the
Executive the termination benefits specified in paragraph
2 hereof if (a) control of IPALCO is acquired (as defined
in paragraph 3(a) hereof) during the term of this
Agreement (as described in paragraph 5 hereof) and (b)
within three (3) years after the acquisition of control
occurs (i) the Company terminates the employment of the
Executive for any reason other than Cause (as defined in
paragraph 3(b) hereof), death, or total and permanent
disability, or (ii) the Executive voluntarily terminates
his employment for Good Reason (as defined in paragraph
3(c) hereof).
2. Termination Benefits. If the Executive is
entitled to termination benefits pursuant to paragraph 1
hereof, the Company agrees to pay to the Executive as
termination benefits in a lump-sum payment within five
(5) calendar days of the termination of the Executive's
employment an amount to be computed by multiplying (i)
the Executive's average annual compensation (as defined
in Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code")) payable by the Company which was
includable in the gross income of the Executive for the
most recent five (5) calendar years ending coincident
with or immediately before the date on which control of
the Company is acquired (or such portion of such period
during which the Executive was an employee of the
Company), by (ii) two hundred ninety-nine and ninety-nine
one hundredths percent (299.99%). For purposes of this
Agreement, employment and compensation paid by any direct
or indirect subsidiary of the Company will be deemed to
be employment and compensation paid by the Company.
3. Definitions.
(a) As used in this Agreement, the
"acquisition of control" means:
(i) The acquisition by any individual,
entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended
(the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange
Act) of twenty percent (20%) or more of
either (A) the then outstanding shares of
common stock of IPALCO (the "Outstanding
IPALCO Common Stock") or (B) the combined
voting power of the then outstanding voting
securities of IPALCO entitled to vote
generally in the election of directors (the
"Outstanding IPALCO Voting Securities");
provided, however, that the following
acquisitions shall not constitute an
acquisition of control: (A) any acquisition
directly from IPALCO (excluding an
acquisition by virtue of the exercise of a
conversion privilege), (B) any acquisition by
IPALCO, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or
maintained by IPALCO, IPL or any corporation
controlled by IPALCO or (D) any acquisition
by any corporation pursuant to a
reorganization, merger or consolidation, if,
following such reorganization, merger or
consolidation, the conditions described in
clauses (A), (B) and (C) of subsection (iii)
of this paragraph 3(a) are satisfied;
(ii) Individuals who, as of the date
hereof, constitute the Board of Directors of
IPALCO (the "Incumbent Board") cease for any
reason to constitute at least a majority of
the Board of Directors of IPALCO (the
"Board"); provided, however, that any
individual becoming a director subsequent to
the date hereof whose election, or nomination
for election by IPALCO's shareholders, was
approved by a vote of at least a majority of
the directors then comprising the Incumbent
Board shall be considered as though such
individual were a member of the Incumbent
Board, but excluding, for this purpose, any
such individual whose initial assumption of
office occurs as a result of either an actual
or threatened election contest (as such terms
are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies
or consents by or on behalf of a Person other
than the Board; or
(iii) Approval by the shareholders of
IPALCO of a reorganization, merger or
consolidation, in each case, unless,
following such reorganization, merger or
consolidation, (A) more than sixty percent
(60%) of, respectively, the then outstanding
shares of common stock of the corporation
resulting from such reorganization, merger or
consolidation and the combined voting power
of the then outstanding voting securities of
such corporation entitled to vote generally
in the election of directors is then
beneficially owned, directly or indirectly,
by all or substantially all of the
individuals and entities who were the
beneficial owners, respectively, of the
Outstanding IPALCO Common Stock and
Outstanding IPALCO Voting Securities
immediately prior to such reorganization,
merger or consolidation in substantially the
same proportions as their ownership,
immediately prior to such reorganization,
merger or consolidation, of the Outstanding
IPALCO Stock and Outstanding IPALCO Voting
Securities, as the case may be, (B) no Person
(excluding IPALCO, any employee benefit plan
or related trust of IPALCO, IPL or such
corporation resulting from such
reorganization, merger or consolidation and
any Person beneficially owning, immediately
prior to such reorganization, merger or
consolidation and any Person beneficially
owning, immediately prior to such
reorganization, merger or consolidation,
directly or indirectly, twenty percent (20%)
or more of the Outstanding IPALCO Common
Stock or Outstanding Voting Securities, as
the case may be) beneficially owns, directly
or indirectly, twenty percent (20%) or more
of, respectively, the then outstanding shares
of common stock of the corporation resulting
from such reorganization, merger or
consolidation or the combined voting power of
the then outstanding voting securities of
such corporation entitled to vote generally
in the election of directors and (C) at least
a majority of the members of the board of
directors of the corporation resulting from
such reorganization, merger or consolidation
were members of the Incumbent Board at the
time of the execution of the initial
agreement providing for such reorganization,
merger or consolidation;
(iv) Approval by the shareholders of
IPALCO of (A) a complete liquidation or
dissolution of IPALCO or (B) the sale or
other disposition of all or substantially all
of the assets of IPALCO, other than to a
corporation, with respect to which following
such sale or other disposition (1) more than
sixty percent (60%) of, respectively, the
then outstanding shares of common stock of
such corporation and the combined voting
power of the then outstanding voting
securities of such corporation entitled to
vote generally in the election of directors
is then beneficially owned, directly or
indirectly, by all or substantially all of
the individuals and entities who were the
beneficial owners, respectively, of the
Outstanding IPALCO Common Stock and
Outstanding IPALCO Voting Securities
immediately prior to such sale or other
disposition in substantially the same
proportion as their ownership, immediately
prior to such sale or other disposition, of
the Outstanding IPALCO Common Stock and
Outstanding IPALCO Voting Securities, as the
case may be, (2) no Person (excluding IPALCO
and any employee benefit plan or related
trust of IPALCO, IPL or such corporation and
any Person beneficially owning, immediately
prior to such sale or other disposition,
directly or indirectly, twenty percent (20%)
or more of the Outstanding IPALCO Common
Stock or Outstanding IPALCO Voting
Securities, as the case may be) beneficially
owns, directly or indirectly, twenty percent
(20%) or more of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of
the then outstanding voting securities of
such corporation entitled to vote generally
in the election of directors and (3) at least
a majority of the members of the board of
directors of such corporation were members of
the Incumbent Board at the time of the
execution of the initial agreement or action
of the Board providing for such sale or other
disposition of assets of IPALCO; or
(v) The closing, as defined in the
documents relating to, or as evidenced by a
certificate of any state or federal
governmental authority in connection with, a
transaction approval of which by the
shareholders of IPALCO would constitute an
"acquisition of control" under subsection
(iii) or (iv) of this section 3(a) of this
Agreement.
Notwithstanding anything contained in this
Agreement to the contrary, if the Executive's
employment is terminated before an "acquisition of
control" as defined in this section 3(a) and the
Executive reasonably demonstrates that such
termination (i) was at the request of a third
party who has indicated an intention or taken
steps reasonably calculated to effect an
"acquisition of control" and who effectuates an
"acquisition of control" (a "Third Party") or (ii)
otherwise occurred in connection with, or in
anticipation of, an "acquisition of control" which
actually occurs, then for all purposes of this
Agreement, the date of an "acquisition of control"
with respect to the Executive shall mean the date
immediately prior to the date of such termination
of the Executive's employment.
(b) As used in this Agreement, the term
"Cause" means fraud, dishonesty, theft of
corporate assets, or other gross misconduct by the
Executive. Notwithstanding the foregoing, the
Executive shall not be deemed to have been
terminated for cause unless and until there shall
have been delivered to him a copy of a resolution
duly adopted by the affirmative vote of not less
than a majority of the entire membership of the
Board at a meeting of the Board called and held
for the purpose (after reasonable notice to him
and an opportunity for him, together with his
counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the
Executive was guilty of conduct set forth above in
the first sentence of the subsection and
specifying the particulars thereof in detail.
(c) As used in this Agreement, the term
"Good Reason" means, without the Executive's
written consent, (i) a demotion in the Executive's
status, position or responsibilities which, in his
reasonable judgment, does not represent a
promotion from his status, position or
responsibilities as in effect immediately prior to
the change in control; (ii) the assignment to the
Executive of any duties or responsibilities which,
in his reasonable judgment, are inconsistent with
such status, position or responsibilities; or any
removal of the Executive from or failure to
reappoint or reelect him to any of such positions,
except in connection with the termination of his
employment for total and permanent disability,
death or Cause or by him other than for Good
Reason; (iii) a reduction by the Company in the
Executive's base salary as in effect on the date
hereof or as the same may be increased from time
to time during the term of this Agreement or the
Company's failure to increase (within twelve (12)
months of the Executive's last increase in base
salary) the Executive's base salary after a change
in control in an amount which at least equals, on
a percentage basis, the average percentage
increase in base salary for all executive and
senior officers of the Company effected in the
preceding twelve (12) months; (iv) the relocation
of the principal executive offices of IPALCO or
IPL, whichever entity on behalf of which the
Executive performs a principal function of that
entity as part of his employment services, to a
location outside the Indianapolis, Indiana
metropolitan area or the Company's requiring him
to be based at any place other than the location
at which he performed his duties prior to a change
in control, except for required travel on the
Company's business to an extent substantially
consistent with his business travel obligations at
the time of a change in control; (v) the failure
by the Company to continue in effect any
incentive, bonus or other compensation plan in
which the Executive participates, including but
not limited to the Company's stock option and
restricted stock plans, unless an equitable
arrangement (embodied in an ongoing substitute or
alternative plan), with which he has consented,
has been made with respect to such plan in
connection with the change in control, or the
failure by the Company to continue his
participation therein, or any action by the
Company which would directly or indirectly
materially reduce his participation therein; (vi)
the failure by the Company to continue to provide
the Executive with benefits substantially similar
to those enjoyed by him or to which he was
entitled under any of the Company's pension,
profit sharing, life insurance, medical, dental,
health and accident, or disability plans in which
he was participating at the time of a change in
control, the taking of any action by the Company
which would directly or indirectly materially
reduce any of such benefits or deprive him of any
material fringe benefit enjoyed by him or to which
he was entitled at the time of the change in
control, or the failure by the Company to provide
him with the number of paid vacation and sick
leave days to which he is entitled on the basis of
years of service with the Company in accordance
with the Company's normal vacation policy in
effect on the date hereof; (vii) the failure of
the Company to obtain a satisfactory agreement
from any successor or assign of the Company to
assume and agree to perform this Agreement; (viii)
any purported termination of the Executive's
employment which is not effected pursuant to a
Notice of Termination satisfying the requirements
of paragraph 4(c) hereof (and, if applicable,
paragraph 3(b) hereof); and for purposes of this
Agreement, no such purported termination shall be
effective; or (ix) any request by the Company that
the Executive participate in an unlawful act or
take any action constituting a breach of the
Executive's professional standard of conduct.
Notwithstanding anything in this paragraph
3(c) to the contrary, the Executive's right to
terminate his employment pursuant to this
paragraph 3(c) shall not be affected by his
incapacity due to physical or mental illness.
4. Additional Provisions.
(a) Enforcement of Agreement. The Company
is aware that upon the occurrence of a change in
control the Board of Directors or a shareholder of
the Company may then cause or attempt to cause the
Company to refuse to comply with its obligations
under this Agreement, or may cause or attempt to
cause the Company to institute, or may institute,
litigation seeking to have this Agreement declared
unenforceable, or may take or attempt to take
other action to deny the Executive the benefits
intended under this Agreement. In these
circumstances, the purpose of this Agreement could
be frustrated. It is the intent of the Company
that the Executive not be required to incur the
expenses associated with the enforcement of his
rights under this Agreement by litigation or other
legal action, nor be bound to negotiate any
settlement of his rights hereunder, because the
cost and expense of such legal action or
settlement would substantially detract from the
benefits intended to be extended to the Executive
hereunder. Accordingly, if following a change in
control it should appear to the Executive that the
Company has failed to comply with any of its
obligations under this Agreement or in the event
that the Company or any other person takes any
action to declare this Agreement void or
unenforceable, or institutes any litigation or
other legal action designed to deny, diminish or
to recover from the Executive the benefits
entitled to be provided to the Executive hereunder
and that the Executive has complied with all of
his obligations under this Agreement, the Company
irrevocably authorizes the Executive from time to
time to retain counsel of his choice, at the
expense of the Company as provided in this
paragraph 4(a), to represent the Executive in
connection with the initiation or defense of any
litigation or other legal action, whether such
action is by or against the Company or any
director, officer, shareholder, or other person
affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior
attorney-client relationship between the Company
and such counsel, the Company irrevocably consents
to the Executive entering into an attorney-client
relationship with such counsel, and in that
connection the Company and the Executive agree
that a confidential relationship shall exist
between the Executive and such counsel. The
reasonable fees and expenses of counsel selected
from time to time by the Executive as hereinabove
provided shall be paid or reimbursed to the
Executive by the Company on a regular, periodic
basis upon presentation by the Executive of a
statement or statements prepared by such counsel
in accordance with its customary practices, up to
a maximum aggregate amount of $500,000. Any legal
expenses incurred by the Company by reason of any
dispute between the parties as to enforceability
of or the terms contained in this Agreement,
notwithstanding the outcome of any such dispute,
shall be the sole responsibility of the Company,
and the Company shall not take any action to seek
reimbursement from the Executive for such
expenses.
(b) Severance Pay; No Duty to Mitigate. The
amounts payable to the Executive under this
Agreement shall not be treated as damages but as
severance compensation to which the Executive is
entitled by reason of termination of his
employment in the circumstances contemplated by
this Agreement. The Company shall not be entitled
to set off against the amounts payable to the
Executive any amounts earned by the Executive in
other employment after termination of his
employment with the Company, or any amounts which
might have been earned by the Executive in other
employment had he sought such other employment.
(c) Notice of Termination. Any purported
termination by the Company or by the Executive
shall be communicated by written Notice of
Termination to the other party hereto in
accordance with paragraph 4(k) hereof. For
purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall
indicate the specific termination provision in
this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances
claimed to provide a basis for termination of his
employment under the provision so indicated. For
purposes of this Agreement, no such purported
termination shall be effective without such Notice
of Termination.
(d) Internal Revenue Code. Anything in this
Agreement to the contrary notwithstanding, in the
event that Deloitte & Touche determines that any
payment by the Company to or for the benefit of
the Executive pursuant to the terms of this
Agreement would be nondeductible by the Company
for federal income tax purposes because of Section
280G of the Code, then the amount payable to or
for the benefit of the Executive pursuant to this
Agreement shall be reduced (but not below zero) to
the maximum amount payable without causing the
payment to be nondeductible by the Company because
of Section 280G of the Code. Such determination
by Deloitte & Touche shall be conclusive and
binding upon the parties.
(e) Assignment. This Agreement shall inure
to the benefit of and be binding upon the parties
hereto and their respective executors,
administrators, heirs, personal representatives,
successors, and assigns, but neither this
Agreement nor any right hereunder may be assigned
or transferred by either party hereto, any
beneficiary, or any other person, nor be subject
to alienation, anticipation, sale, pledge,
encumbrance, execution, levy, or other legal
process of any kind against the Executive, his
beneficiary or any other person. Notwithstanding
the foregoing, the Company will assign this
Agreement to any corporation or other business
entity succeeding to substantially all of the
business and assets of the Company by merger,
consolidation, sale of assets, or otherwise and
shall obtain the assumption of this Agreement by
such successor.
(f) Entire Agreement. This Agreement
contains the entire agreement between the parties
with respect to the subject matter hereof. All
representations, promises, and prior or
contemporaneous understandings among the parties
with respect to the subject matter hereof,
including any Prior Termination Benefits
Agreements, are merged into and expressed in this
Agreement, and any and all prior agreements
between the parties with respect to the subject
matter hereof are hereby cancelled.
(g) Amendment. This Agreement shall not be
amended, modified, or supplemented without the
written agreement of the parties at the time of
such amendment, modification, or supplement.
(h) Governing Law. This Agreement shall be
governed by and subject to the laws of the State
of Indiana.
(i) Severability. The invalidity or
unenforceability of any particular provision of
this Agreement shall not affect the other
provisions, and this Agreement shall be construed
in all respects as if such invalid or
unenforceable provision had not been contained
herein.
(j) Captions. The captions in this
Agreement are for convenience and identification
purposes only, are not an integral part of this
Agreement, and are not to be considered in the
interpretation of any part hereof.
(k) Notices. Except as otherwise
specifically provided in this Agreement, all
notices and other communications hereunder shall
be in writing and shall be deemed to have been
duly given if delivered in person or sent by
registered or certified mail, postage prepaid,
addressed as set forth above, or to such other
address as shall be furnished in writing by any
party to the others.
(l) Waivers. Except as otherwise
specifically provided in this Agreement, no waiver
by either party hereto of any breach by the other
party hereto of any condition or provision of this
Agreement to be performed by such other party
shall be deemed to be a valid waiver unless such
waiver is in writing or, even if in writing, shall
be deemed to be a waiver of a subsequent breach of
such condition or provision or a waiver of a
similar or dissimilar provision or condition at
the same or at any prior or subsequent time.
(m) Gender. The use of the masculine gender
throughout this Agreement is solely for
convenience; thus, in cases where the Executive is
female, the feminine gender shall be deemed to be
used in place of the masculine gender.
5. Term of this Agreement. This Agreement shall
remain in effect until December 31, 1999 or until the
expiration of any extension thereof. The term of this
Agreement shall be automatically extended for one (1)
year periods without further action of the parties as of
January 1, 1998 and each succeeding January 1 thereafter,
unless IPALCO shall have served written notice to the
Executive prior to January 1, 1998 or prior to January 1
of each succeeding year, as the case may be, of its
intention that the Agreement shall terminate at the end
of the three (3) year period that begins with the
January 1 following the date of such written notice.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
IPALCO ENTERPRISES, INC.
By:/s/ John R. Hodowal
John R. Hodowal, Chairman of
the Board and President
Attest:
/s/ Bryan G. Tabler
Bryan G. Tabler, Secretary
INDIANAPOLIS POWER & LIGHT COMPANY
By:/s/ John R. Hodowal
John R. Hodowal, Chairman of the
Board and Chief Executive Officer
Attest:
/s/ Bryan G. Tabler
Bryan G. Tabler, Secretary
/s/ Ramon L. Humke
Ramon L. Humke
<TABLE>
INDIANAPOLIS POWER & LIGHT COMPANY EXHIBIT 12.1
Ratio of Earnings to Fixed Charges
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------------------
1999 1998 1997
--------- --------- ---------
(Thousands of Dollars)
<S> <C> <C> <C>
Earnings, as defined:
Net income (1) $146,231 $149,147 $133,402
Income taxes 85,056 84,386 74,440
Fixed charges, as below 41,094 40,991 41,893
--------- --------- ---------
Total earnings, as defined $272,381 $274,524 $249,735
========= ========= =========
Fixed charges, as defined:
Interest charges $ 41,020 $ 40,810 $ 41,721
Rental interest factor 74 181 172
--------- --------- ---------
Total fixed charges, as defined $ 41,094 $ 40,991 $ 41,893
========= ========= =========
Ratio of earnings to fixed charges 6.63 6.70 5.96
========= ========= =========
(1) 1997 Net income excludes after-tax effect of cumulative effect of accounting change
</TABLE>
Exhibit 21.1 List of Subsidiaries
--------------------
State in
Which
Organized
---------
Subsidiary of Indianapolis Power & Light Company (IPL)
IPL Funding Corporation Indiana
IPL is wholly owned by IPALCO Enterprises, Inc. The subsidiary
listed for IPL is wholly owned also.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000050217
<NAME> INDIANAPOLIS POWER & LIGHT COMPANY
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,750,412
<OTHER-PROPERTY-AND-INVEST> 5,753
<TOTAL-CURRENT-ASSETS> 176,593
<TOTAL-DEFERRED-CHARGES> 115,992
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 2,048,750
<COMMON> 324,537
<CAPITAL-SURPLUS-PAID-IN> 0
<RETAINED-EARNINGS> 453,331
<TOTAL-COMMON-STOCKHOLDERS-EQ> 780,510
0
59,135
<LONG-TERM-DEBT-NET> 627,951
<SHORT-TERM-NOTES> 49,000
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 0
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 532,154
<TOT-CAPITALIZATION-AND-LIAB> 2,048,750
<GROSS-OPERATING-REVENUE> 834,652
<INCOME-TAX-EXPENSE> 84,475
<OTHER-OPERATING-EXPENSES> 566,676
<TOTAL-OPERATING-EXPENSES> 651,151
<OPERATING-INCOME-LOSS> 183,501
<OTHER-INCOME-NET> 2,921
<INCOME-BEFORE-INTEREST-EXPEN> 186,422
<TOTAL-INTEREST-EXPENSE> 40,191
<NET-INCOME> 146,231
3,213
<EARNINGS-AVAILABLE-FOR-COMM> 143,018
<COMMON-STOCK-DIVIDENDS> 129,924
<TOTAL-INTEREST-ON-BONDS> 38,057
<CASH-FLOW-OPERATIONS> 224,859
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
