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EXHIBIT 4.61
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JASPER COUNTY, INDIANA
and
NORTHERN INDIANA PUBLIC SERVICE COMPANY
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FIRST AMENDMENT TO FINANCING AGREEMENT NO. 1
SERIES 1988A
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Dated as of November 1, 2000
Supplementing and amending that certain
Financing Agreement No. 1
dated as of November 1, 1988
$37,000,000
Jasper County, Indiana
Variable Rate Demand Pollution Control Refunding Revenue Bonds
(Northern Indiana Public Service Company Project)
Series 1988A
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FIRST AMENDMENT TO FINANCING AGREEMENT NO. 1
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TABLE OF CONTENTS
(This Table of Contents is not a part of the First Amendment to Financing
Agreement No. 1 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 Section 5.1 of the Original Agreement.....................................3
Section 2.04. Addition of Section 5.10 to the Original Agreement.....................................3
Section 2.05. Amendment to Sections 6.1(c), 6.5, 7.3(a), 8.2, 8.5 and 8.6 of the
Original Agreement.................................................................4
Section 2.06. Addition of Section 8.12 to the Original Agreement.....................................4
ARTICLE III MISCELLANEOUS..........................................................................5
Section 3.01. Agreement Confirmed....................................................................5
Section 3.02. Notice to Rating Agencies..............................................................5
Section 3.03. Severability...........................................................................5
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 NO. 1
THIS FIRST AMENDMENT TO FINANCING AGREEMENT NO. 1 (this "First
Amendment") is made and entered into as of November 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 November 3, 1988 the Issuer issued its Variable Rate Demand
Pollution Control Refunding Revenue Bonds (Northern Indiana Public Service
Company Project) Series ▇▇▇▇▇ (▇▇▇ "▇▇▇▇▇") in the original aggregate principal
amount of $37,000,000 pursuant to an Indenture of Trust No. 1 dated as of
November 1, 1988 (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 No. 1 dated as of
November 1, 1988 by and between the Issuer and the Company (the "Original
Agreement"); and
WHEREAS, the Original Indenture has been amended by a First Amendment
to Indenture of Trust No. 1, dated as of July 1, 2000 and, concurrently with the
execution and delivery of this First Amendment, the Original Indenture, as
amended, is being amended, supplemented and restated by the Amended and Restated
Indenture of Trust No. 1 of even date herewith (the "Indenture") in order to add
provisions relating to a bond insurance policy 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
66-2/3% in aggregate principal amount 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 No. 1
relating to the Bonds, 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 the financial guaranty insurance policy 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 November 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 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 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
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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, a sum equal to the amount payable on
such interest payment or redemption or acceleration or
maturity date 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
payment shall be deemed to be satisfied and discharged to the
extent of the corresponding payment made to the Trustee under
the Letter of Credit or from amounts realized by the Trustee
under any Alternate Credit Facility."
Section 2.03. 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 2.04. Addition of Section 5.10 to the Original Agreement. An
additional Section is hereby added to the end of Article V of the Original
Agreement as follows:
"Section 5.10. Tax-Exempt Status of the Bonds. 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 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
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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. All expectations and representations made
herein by the Issuer are made solely on the basis of the
representations and expectations of the Company stated herein.
The Issuer knows of no reason to question these
representations or expectations.
The Company covenants and agrees to comply with the Tax
Agreement and to notify the Trustee and the Issuer of the
occurrence of any event of which the Company has notice and
which event would require the Company to prepay any series of
Bonds in accordance with Section 7.2 hereof."
Section 2.05. 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 2.06. 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.
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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 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 66-2/3% in aggregate principal amount of the Bonds now Outstanding
to the execution hereof.
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IN WITNESS WHEREOF, the Issuer and the Company 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇
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By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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[SEAL]
ATTEST:
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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County Auditor
NORTHERN INDIANA PUBLIC SERVICE COMPANY
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title Treasurer
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[SEAL]
ATTEST:
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title Secretary
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