EXHIBIT B-4
INDEMNIFICATION AND REIMBURSEMENT AGREEMENT
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THIS AGREEMENT, dated as of , 2000, between
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Alliant Energy Corporation, a Wisconsin corporation ("Alliant"), and Wisconsin
Energy Corporation, a Wisconsin corporation ("WEC"),
WITNESSETH:
WHEREAS, American Transmission Company, LLC (the "Borrower") has
entered into a Credit Agreement dated , 2000, with
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various financial institutions (the "Lenders") and Bank One, NA (the "Agent")
pursuant to which the Lenders may make certain loans to the Borrower; and
WHEREAS, WEC has, either directly or through a subsidiary, made a
substantial investment in the Borrower; and
WHEREAS, Alliant has executed a Guaranty ("Guaranty Agreement") dated
as of , 2000, in favor of the Agent and the Lenders,
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under which Alliant has agreed to guaranty payment of certain obligations
("Obligations") of the Borrower under or in connection with the Credit
Agreement; and
WHEREAS, WEC has agreed to indemnify and reimburse Alliant for
one-half of any payments which Alliant makes under the Guaranty Agreement; and
WHEREAS, Alliant has entered into a Reimbursement Agreement dated
, 2000 (the "Reimbursement Agreement") with the Borrower with
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respect to payments which may be made by Alliant under the Guaranty Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce Alliant to
enter into the Guaranty Agreement, the parties hereto agree as follows:
1. Reimbursement by WEC. WEC hereby unconditionally promises to pay to
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Alliant within five business days after demand, without defense, setoff or
counterclaim, (a) fifty percent (50%) of all amounts which Alliant may pay to
the Agent or any Lender under or in connection with the Guaranty Agreement, and
(b) interest on all amounts for which WEC is responsible under subsection (a)
from the date of payment by Alliant to five (5) business days after Alliant
sends to WEC a demand for payment of a specified amount due to Alliant under
this section, accompanied by a copy of any written demand for payment received
by Alliant under the Guaranty Agreement, at a daily rate equal to the rate
payable on Dealer Commercial Paper with a maturity of thirty (30) days as
published in the "Money Rates" section of The Wall Street Journal (or, if not so
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published, as determined by any other reasonable method), and thereafter to and
including the date of reimbursement by WEC at the rate of interest announced by
Bank One, NA from time to time as its prime or reference rate for interest rate
determinations plus 2% per annum, with the interest rate thereon changing as and
when such prime rate changes. WEC's obligation to reimburse Alliant shall be
absolute, unconditional and irrevocable, shall be paid strictly in accordance
with this Agreement, and shall not be affected by, and Alliant shall not be
responsible for, among other things, (a) the validity or enforceability of, or
compliance with the terms of, the Guaranty Agreement, the Credit Agreement, the
Reimbursement Agreement or any related document, (b) the use of the proceeds of
loans made under the Credit Agreement, or (c) any dispute between the Borrower
and the Agent or any Lender or Lenders. Alliant shall not be obligated to: (a)
take any steps whatsoever to collect from, or to file any claim of any kind
against, the Borrower, or any other person or entity liable for payment or
performance of any of the Obligations; or (b) take any steps whatsoever to
protect, accept, obtain, enforce, take possession of, perfect its interest in,
foreclose or realize on collateral or security, if any, for the payment or
performance of the Reimbursement Agreement, any of the Obligations or any
agreement which relates to any of the Obligations; or (c) in any other respect
exercise any diligence whatever in collecting or attempting to collect from the
Borrower or any third party by any means. Alliant shall have the exclusive
right, which may be exercised from time to time without diminishing or impairing
the obligations of WEC hereunder, and without notice of any kind to WEC, to
consent to any amendment, modification or waiver of any of the provisions of the
Credit Agreement or any related document (so long as the principal amount of
loans under the Credit Agreement which are guaranteed under the Guaranty
Agreement does not exceed $25 million), grant or enter into any waiver,
amendment, modification, extension, refinancing, indulgence, compromise,
settlement, discharge or release of any of the provisions of the Guaranty
Agreement, the Reimbursement Agreement or any other agreement which relates to
the Obligations, and honor any demand for payment under the Guaranty Agreement
without inquiry or investigation. WEC unconditionally and irrevocably waives (i)
all notices of any kind, including notice of creation or nonpayment of any of
the Obligations and notice of any demand or payment made under the Guaranty
Agreement, (ii) each and every defense which would otherwise operate to impair
or diminish its obligations under this Agreement, (iii) any subrogation to the
rights of Alliant against the Borrower and any other claim against the Borrower
or any third party which arises as a result of payments made by Alliant pursuant
to this Agreement, until all obligations owed to Alliant under the Reimbursement
Agreement have been paid or performed in full and such payments are not subject
to any right of recovery; and (iv) any setoffs or counterclaims against Alliant
which would otherwise impair Alliant's rights against WEC hereunder. Nothing
whatever except actual full payment and performance to Alliant shall operate to
discharge WEC's obligations hereunder.
2. Independent Investigation. WEC has made an independent
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investigation and evaluation of the financial condition of the Borrower, and has
not relied (and will not rely) on any information or evaluation provided by
Alliant regarding such financial condition.
3. Refund of Payments. If at any time, all or any part of any payment
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of the Obligations is returned to or recovered by Alliant by subrogation or
otherwise, and is not subject to any right of recovery, Alliant shall refund to
WEC the amount of any reimbursement previously received by Alliant from WEC for
such payment or portion thereof; provided, however, that the refund shall be
limited to fifty percent (50%) of the amount so recovered by Alliant, and WEC
shall continue to be responsible for its share of any payments made by Alliant
under the Guaranty Agreement thereafter. Alliant shall pay WEC interest on all
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amounts for which Alliant is responsible under this section from the date of
receipt of the funds by Alliant to five (5) business days after WEC sends to
Alliant a demand for payment of a specified amount due to WEC under this
section, at a daily rate equal to the rate payable on Dealer Commercial Paper
with a maturity of thirty (30) days as published in the "Money Rates" section of
The Wall Street Journal (or, if not so published, as determined by any other
reasonable method), and thereafter to and including the date of reimbursement by
Alliant at the rate of interest announced by Bank One, NA from time to time as
its prime or reference rate for interest rate determinations plus 2% per annum,
with the interest rate thereon changing as and when such prime rate changes.
4. Warranties. WEC represents and warrants that:
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a. The execution, delivery and performance of this Agreement by
WEC are within the corporate powers of WEC, have been duly authorized by all
necessary corporate action, and do not and will not (i) require any consent or
approval of the shareholders of WEC which has not been obtained, (ii) violate
any provision of the articles of incorporation or by-laws of WEC or of any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award presently in effect having applicability to WEC; (iii) require the consent
or approval of, or filing or registration with, any governmental body, agency or
authority, or (iv) result in a breach of or constitute a default under, or
result in the imposition of any lien, charge or encumbrance upon any property of
WEC pursuant to, any indenture or other agreement or instrument under which WEC
is a party or by which it or any of its properties may be bound or affected.
b. This Agreement constitutes the legal, valid and binding
obligation of WEC enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy or similar laws affecting the
enforceability of creditors' rights generally.
5. Expenses. WEC shall pay or reimburse Alliant, to the extent Alliant
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is not reimbursed by the Borrower, for (i) fifty percent (50%) of all reasonable
out-of-pocket costs and expenses (including without limitation, reasonable
attorneys' fees and expenses) paid or incurred by Alliant in connection with the
negotiation, preparation, execution, delivery and administration of the Guaranty
Agreement, this Agreement and any other document required hereunder or
thereunder, including without limitation any amendment, supplement, modification
or waiver of or to any of the foregoing; and (ii) all reasonable out-of-pocket
costs and expenses (including without limitation, reasonable attorneys' fees and
expenses) paid or incurred by Alliant before or after judgment in enforcing,
protecting or preserving any of its rights under this Agreement.
6. Entire Agreement. This Agreement constitutes the entire agreement
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between Alliant and WEC with respect to the subject matter hereof, superseding
all previous communications and negotiations, and no representation,
understanding, promise or condition concerning the subject matter hereof shall
be binding upon Alliant unless expressed herein.
7. Counterparts. This Agreement may be executed in any number of
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counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
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8. No Guarantee of Indebtedness. This Agreement is not, and nothing
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herein contained and no action taken pursuant hereto by WEC shall be construed
as, or deemed to constitute, a direct or indirect guarantee by WEC to any person
of the payment of any indebtedness, liability or obligation of any kind or
character whatsoever of the Borrower.
9. No Waiver. Any failure or delay on the part of Alliant in asserting
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or enforcing any of its rights or in making any claims or demands hereunder
shall not constitute a waiver of any of Alliant's rights hereunder.
10. Successors. This Agreement shall be binding upon the parties
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hereto and their respective successors and assigns. This Agreement is not
intended for the benefit of any other person and shall not confer or be deemed
to confer upon any other person any benefits, rights or remedies hereunder.
11. Governing Law. This Agreement shall be construed in accordance
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with and governed by the internal laws of the State of Wisconsin.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their respective officers thereunto duly authorized
as of the day and year first above written.
ALLIANT ENERGY CORPORATION
(SEAL)
By:
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Title:
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WISCONSIN ENERGY CORPORATION
(SEAL)
By:
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Title:
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