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EXHIBIT 4.62
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JASPER COUNTY, INDIANA
and
NORTHERN INDIANA PUBLIC SERVICE COMPANY
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FIRST AMENDMENT TO FINANCING AGREEMENT
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Dated as of December 1, 2000
Supplementing and amending that certain
Financing Agreement
dated as of August 1, 1994
$69,000,000
Jasper County, Indiana
Pollution Control Refunding Revenue Bonds
(Northern Indiana Public Service Company Project)
Series 1994A, B and C
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FIRST AMENDMENT TO FINANCING AGREEMENT
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TABLE OF CONTENTS
(This Table of Contents is not a part of the First Amendment to
Financing Agreement and is only for convenience of reference.)
SECTION HEADING PAGE
ARTICLE I DEFINITIONS; AMENDMENTS TO DEFINITIONS.................................................2
Section 1.01. Definitions of Terms; Amendments to Definitions........................................2
ARTICLE II AMENDMENTS TO ORIGINAL AGREEMENT.......................................................2
Section 2.01. Amendment to Section 3.2 of the Original Agreement.....................................2
Section 2.02. Amendment to Section 4.2 of the Original Agreement.....................................3
Section 2.03. Amendment to Sections 4.5(b) of the Original Agreement.................................3
Section 2.04. Amendment to Section 5,1 of the Original Agreement.....................................3
Section 2.05. Addition to Section 5.10 of the Original Agreement.....................................3
Section 2.06. Amendment to Sections 6.1(c), 6.5, 7.3(a), 8.2, 8.5 and 8.6 of the
Original Agreement.................................................................4
Section 2.07. Addition of Section 8.12 to the Original Agreement.....................................4
ARTICLE III MISCELLANEOUS..........................................................................4
Section 3.01. Agreement Confirmed....................................................................4
Section 3.02. Notice to Rating Agencies..............................................................4
Section 3.03. Severability...........................................................................4
Section 3.04. Counterparts...........................................................................5
Section 3.05. Applicable Provisions of Law...........................................................5
Section 3.06. Effective Date.........................................................................5
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FIRST AMENDMENT TO FINANCING AGREEMENT
THIS FIRST AMENDMENT TO FINANCING AGREEMENT (this "First Amendment") is
made and entered into as of December 1, 2000 between JASPER COUNTY, INDIANA, a
political subdivision of the State of Indiana (the "Issuer"), and NORTHERN
INDIANA PUBLIC SERVICE COMPANY (the "Company"):
WITNESSETH:
WHEREAS, on August 25, 1994 the Issuer issued its Pollution Control
Refunding Revenue Bonds (Northern Indiana Public Service Company Project) Series
1994A, B and C (collectively, the "Bonds") in the original aggregate principal
amount of $69,000,000 pursuant to an Indenture of Trust dated as of August 1,
1994 (the "Original Indenture") by and between the Issuer and Bank One Trust
Company, N.A., formerly Bank One, Indianapolis, NA (the "Trustee"); and
WHEREAS, in connection with the issuance of the Bonds, the Issuer and
the Company executed and delivered the Financing Agreement dated as of August 1,
1994 by and between the Issuer and the Company (the "Original Agreement"); and
WHEREAS, concurrently with the execution and delivery of this First
Amendment, the Original Indenture is being amended, supplemented and restated by
the Amended and Restated Indenture of Trust of even date herewith (the
"Indenture") in order to add provisions relating to a bond insurance policy for
each series of Bonds and an Auction Rate interest-setting mechanism; and
WHEREAS, Section 1502 of the Original Indenture provides that the
Issuer and the Company may, with the consent of the owners of not less than 60%
in aggregate principal amount of each series of the Bonds now Outstanding, enter
into an agreement supplemental to the Original Agreement to make certain
changes, and Section 8.6 of the Original Agreement provides that such
supplemental agreement is subject to the written consent of the Trustee; and
WHEREAS, the Issuer and the Company desire to enter into this First
Amendment, as permitted by Section 1502 of the Original Indenture and Section
8.6 of the Original Agreement, in order to amend the Original Agreement to make
certain changes relating to the amendments being made to the Indenture
concurrently herewith;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein set forth, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS; AMENDMENTS TO DEFINITIONS
Section 1.01. Definitions of Terms; Amendments to Definitions. All words
and terms defined in Article I and elsewhere in the Original Agreement shall
have the same respective meanings in this First Amendment, except that the
following definitions are hereby amended to read as follows:
"Indenture" means the Amended and Restated Indenture of Trust between
the Issuer and Bank One Trust Company, N.A., as trustee, dated as of November 1,
2000, including any indentures supplemental thereto or amendatory thereof.
"Insurance Policy" means collectively, the financial guaranty insurance
policies issued by the Insurer insuring the payment when due of the principal of
and interest on the Bonds as provided therein.
"Insurer" means MBIA Insurance Corporation and its successors and
assigns.
"Issuer" means Jasper County, Indiana and any successor body to the
duties or functions of the Issuer and for purposes of any exculpatory and
indemnity provisions of this Agreement and the Indenture, the "Issuer" also
includes the Jasper County Economic Development Commission.
"Reimbursement Agreement" means the Reimbursement and Indemnity
Agreement dated as of October 1, 2000, by and between the Company and the
Insurer, and any and all modifications, alterations, amendments and supplements
thereto.
"Trustee" means Bank One Trust Company, N.A., and any successor Trustee
pursuant to Section 1106 or 1109 of the Indenture at the time serving as
successor Trustee thereunder.
ARTICLE II
AMENDMENTS TO ORIGINAL AGREEMENT
Section 2.01. Amendment to Section 3.2 of the Original Agreement. The
first paragraph of Section 3.2 of the Original Agreement is hereby amended to
read as follows:
"Any moneys held as a part of the Bond Fund shall be invested
or reinvested by the Trustee at the written direction of an
Authorized Company Representative as to specific investments,
to the extent permitted by law and in particular by the Act,
and consented to in writing by the Insurer. In the absence of
specific instructions, the Trustee shall invest such moneys in
the One Group U.S. Treasury
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Securities Money Market Fund (so long as such fund is rated
AAAm-G, AAAm or AAm by S&P) or other money market fund (so
long as such fund is rated AAAm-G, AAAm or AAm by S&P) that
invests exclusively in short-term U.S. Treasury obligations
including repurchase agreements collateralized by such
treasury obligations and when-issued securities, U. S.
Treasury bills, notes and other securities issued or backed by
the U. S. Government."
Section 2.02. Amendment to Section 4.2 of the Original Agreement. The
first paragraph of Section 4.2(a) of the Original Agreement is hereby amended to
read as follows:
"(a) On the Business Day prior to each date provided
in or pursuant to the Indenture for the payment of principal
(whether at maturity or upon redemption or acceleration) of,
premium, if any, and/or interest on the Bonds, until the
principal of, premium, if any, and interest on the Bonds shall
have been fully paid or provision for the payment thereof
shall have been made in accordance with the Indenture, the
Company shall pay to the Trustee in immediately available
funds, for deposit in the Bond Fund, as a repayment
installment of the loan of the proceeds of the Bonds pursuant
to Section 4.1 hereof, sums equal to the amounts payable on
such interest payment or redemption or acceleration or
maturity dates as principal (whether at maturity or upon
redemption or acceleration), premium, if any, and interest
upon the Bonds as provided in the Indenture; provided,
however, that the obligation of the Company to make any such
payments shall be deemed to be satisfied and discharged to the
extent of the corresponding payments made to the Trustee under
a Letter of Credit or from amounts realized by the Trustee
under any Alternate Credit Facility."
Section 2.03. Amendment to Section 4.5(b) of the Original Agreement.
The reference to "Section 304 of the Indenture" in Section 4.5(b) of the
Original Agreement is hereby amended to "Section 305 of the Indenture."
Section 2.04. Amendment to Section 5,1 of the Original Agreement. The
phrase, "shall be a public utility" is hereby deleted from Section 5.1 of the
Original Agreement.
Section 2.05. Addition to Section 5.10 of the Original Agreement. The
first paragraph of Section 5.10 of the Original Agreement is hereby amended to
read as follows:
"The Company hereby covenants for the benefit of the Owners of
the Bonds and the Issuer that it (a) has not taken, and will
not take or permit to be taken on its behalf, any action which
would adversely affect the exclusion of interest on the Bonds
from gross income of the recipients thereof for federal income
tax purposes
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and (b) will take, or require to be taken, such actions as
may, from time to time, be required under applicable law or
regulation to continue to cause the interest on the Bonds to
be so excluded. The Company hereby acknowledges that in the
event of an examination by the Internal Revenue Service of the
exclusion of interest on the Bonds from the gross income of
the Owners thereof for federal income tax purposes under
current regulations, the Internal Revenue Service will treat
the Issuer as the "taxpayer" in such examination. The Company
and the Issuer each agree that it will respond in a
commercially reasonable manner to any inquiries from the
Internal Revenue Service in connection with such an
examination. The Issuer hereby covenants that it will
cooperate with the Company, at the Company's expense and at
its direction, in connection with such examination."
Section 2.06. Amendment to Sections 6.1(c), 6.5, 7.3(a), 8.2, 8.5 and
8.6 of the Original Agreement. All references to the "Bank" shall be deemed to
refer, mutatis mutandis, to the "Insurer" in the following Sections of the
Original Agreement: Sections 6.1(c), 6.5, 7.3(a), 8.2, 8.5 and 8.6.
Section 2.07. Addition of Section 8.12 to the Original Agreement. An
additional Section is hereby added to the end of Article VIII of the Original
Agreement as follows:
"Section 8.12. Insurer as Third Party Beneficiary. The Insurer
is a third-party beneficiary to this Agreement."
ARTICLE III
MISCELLANEOUS
Section 3.01. Agreement Confirmed. Except as amended by this First
Amendment, all of the provisions of the Original Agreement shall remain in full
force and effect, and from and after the effective date of this First Amendment
shall be deemed to have been amended as herein set forth.
Section 3.02. Notice to Rating Agencies. In accordance with Section
1611 of the Original Indenture, the Trustee agrees to give notice of this First
Amendment to each Rating Agency currently rating the Bonds.
Section 3.03. Severability. If any provision of this First Amendment
shall be held or deemed to be or shall, in fact, be inoperative or unenforceable
as applied in any particular case in any jurisdiction or jurisdictions or in all
jurisdictions, or in all cases because it conflicts with any other provision or
provisions hereof or any constitution or statute or rule of public policy, or
for any other reason, such circumstances shall not have the effect of rendering
the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any
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other provision or provisions herein contained invalid, inoperative, or
unenforceable to any extent whatever.
Section 3.04. Counterparts. This First Amendment may be simultaneously
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
Section 3.05. Applicable Provisions of Law. This First Amendment shall
be governed by and construed in accordance with the laws of the State of
Indiana.
Section 3.06. Effective Date. This First Amendment shall become
effective on the date the Trustee has received the Consents of the Trustee and
the owners of 60% in aggregate principal amount of the Bonds now Outstanding to
the execution hereof.
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IN WITNESS WHEREOF, the Issuer and the Trustee have caused this First
Amendment to be executed in their respective corporate names and their
respective corporate seals to be hereunto affixed and attested by their duly
authorized officers, all as of the date first above written.
BOARD OF COMMISSIONERS OF JASPER
COUNTY, INDIANA
By /S/ XXXXXXX X. XXXXXXX
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By /S/ XXXX X. XXXXX
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By /S/ XXXXXX X. XXXXXXXXX
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[SEAL]
ATTEST:
By /S/ Xxxx X. Xxxxxx
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County Auditor
NORTHERN INDIANA PUBLIC SERVICE COMPANY
By /S/ XXXXXXX X. XXXXX
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Title Treasurer
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[SEAL]
ATTEST:
By /S/ Xxxx X. Xxxxxxxx
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Title Secretary
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CONSENT OF THE TRUSTEE
Pursuant to Section 8.6 of the Financing Agreement between Jasper
County, Indiana (the "Issuer") and Northern Indiana Public Service Company (the
"Company"), dated as of August 1, 1994, Bank One Trust Company, N.A., formerly
Bank One, Indianapolis, NA, as Trustee, hereby consents to the execution and
delivery of the First Amendment to Financing Agreement dated as of December 1,
2000 between the Issuer and the Company.
BANK ONE TRUST COMPANY, N.A., formerly
Bank One, Indianapolis, NA, as Trustee
By Xxxx X. Xxxxxx
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Its Authorized Officer
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Date: ___________, 2000
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CONSENT OF BONDHOLDER
The undersigned (the "Bondholder"), the owner as of December 1, 2000 of
Jasper County, Indiana Pollution Control Refunding Revenue Bonds (Northern
Indiana Public Service Company Project) Series 1994A, B and C in the aggregate
principal amount stated below, hereby consents to the execution and delivery of
the First Amendment to Financing Agreement dated as of December 1, 2000 between
Jasper County, Indiana and Northern Indiana Public Service Company attached
hereto. The Bondholder agrees that this Consent shall be irrevocable.
Name of Owner: Xxxxxx Xxxxxxx & Co.
Incorporated
Aggregate Principal Amount of Bonds Owned:
$69,000,000
CUSIP No. ______________
By: /s/ X. X. Xxxxxxx
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Title: Managing Director
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Date: December 1, 2000
