Exhibit 10.5
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RECEIVABLES PURCHASE AGREEMENT
dated as of December 20, 1996
Among
INDIANAPOLIS POWER & LIGHT COMPANY
And
IPL FUNDING CORPORATION
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TABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I PURCHASE AND SETTLEMENTS.....................................1
Section 1.1. Sale.......................................................1
Section 1.2. Purchase Price.............................................1
Section 1.3. Administration of Receivables..............................2
Section 1.4. The Company's Rights.......................................3
Section 1.5. Protection of Ownership Interest of the Company............3
Section 1.6. Contractual Payment Obligations............................4
Section 1.7. Servicing Agent............................................4
ARTICLE II REPRESENTATIONS AND WARRANTIES...............................5
Section 2.1. Representations and Warranties of the Originator...........5
Section 2.2. Representations and Warranties of the Company..............7
ARTICLE III CONDITIONS PRECEDENT.........................................7
Section 3.1. Conditions to Closing......................................7
Section 3.2. Other Transaction Documents................................8
ARTICLE IV COVENANTS....................................................8
Section 4.1. Affirmative Covenants of the Originator....................8
ARTICLE VI MISCELLANEOUS................................................9
Section 5.1. Term of Agreement..........................................9
Section 5.2. Assignment of Receivables Purchase Agreement...............9
Section 5.3. No Waiver; Remedies.......................................10
Section 5.4. Amendments, etc...........................................10
Section 5.5. Notices...................................................10
Section 5.6. Governing Law; Submission to Jurisdiction; Integration....10
Section 5.7. Severability; Counterparts................................10
Section 5.8. Assignment................................................11
Section 5.9. Headings..................................................11
Section 5.10. Costs and Expenses........................................11
Section 5.11. No Partnership or Joint Venture...........................11
EXHIBITS
Exhibit A Credit and Collection Policy
Exhibit B Form of Subordinated Note
Exhibit C Location of Records
Exhibit D Corporate Names; Trade Names; Assumed Names
RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT (this "Agreement"), dated as of December 20,
1996, among Indianapolis Power & Light Company (the "Originator") and IPL
Funding Corporation, an Indiana corporation (the "Company"). Certain capitalized
terms used herein are defined in Schedule I hereto.
The parties hereto agree as follows:
ARTICLE I
PURCHASE AND SETTLEMENTS
Section 1.1. Sale. (a) Subject to the terms and conditions hereof,
commencing on the Initial Purchase Date, the Originator hereby sells to the
Company, and the Company hereby acquires from the Originator, all of the
Originator's right, title and interest in the Purchased Receivables and all
Collections thereon. The Originator intends such sale to be a true sale of all
rights and interests of the Originator in the Receivables in existence on the
Initial Purchase Date and of each Receivable thereafter generated as it is
created until the Originator Termination Date for the Originator.
Section 1.2. Purchase Price. (a) On the Initial Purchase Date and each
Workday thereafter until the Originator Termination Date for the Originator, the
Company shall pay to the Originator a purchase price for each Purchased
Receivable (other than an Excluded Receivable) of the Originator (and not
previously sold to the Company hereunder) equal to the outstanding balance of
such Purchased Receivable in existence on the Determination Date for such
Receivable. Such purchase price shall be paid through two methods. First, the
Company may pay to the Originator a portion of such purchase price by
transferring to the Originator monies then held by the Company, solely to the
extent such monies do not constitute Collections required to be distributed to
the Agent under the Receivables Sale Agreement or necessary as part of a reserve
for liabilities of the Company established by the Company in its sole judgment.
Second, the Company shall pay the remaining purchase price by crediting to the
Subordinated Note such remaining amount of the purchase price payable to the
Originator. On the Initial Purchase Date, at least $5,000,000 of the purchase
price payable to the Originator on the Initial Purchase Date shall so be
credited to the Subordinated Note. On each Monthly Settlement Date occurring
after the Initial Purchase Date, the difference between (x) the total purchase
price payable for all Purchased Receivables originated during the Settlement
Period ending on such Monthly Settlement Date that were not in existence on the
Initial Purchase Date and (y) the amount of such purchase price paid in cash
during that Settlement Period shall be credited to the Subordinated Note. For
any Settlement Period that the amount of such cash payments to the Originator
exceeds the aggregate purchase price payable for Purchased Receivables during
the Settlement Period, such excess shall be applied on the Monthly Settlement
Date for such Settlement Period to reduce the principal amount of the
Subordinated Note.
(b) The Originator and the Company shall each independently take all
necessary action to record properly the sales contemplated by this Agreement to
reflect the Company's ownership of all Purchased Receivables. To the extent the
sale of any Purchased Receivable or Collection under this Agreement is deemed to
be a financing for any applicable legal purpose, the Originator hereby grants to
the Company a security interest in all of the Originator's rights in the
Purchased Receivables it originated and their Collections to secure the claims
of the Company to such Purchased Receivables and all of their Collections and
other proceeds.
(c) None of the Company, the Agent, nor any Purchaser shall have any
obligation or liability to any Obligor or other customer or client of the
Originator to perform any of the obligations of the Originator in connection
with any Receivable or otherwise.
Section 1.3. Administration of Receivables. (a) Consistent with the
Company's ownership of the Purchased Receivables, the Company shall have all
rights to and shall be solely responsible for servicing, administering and
collecting the Purchased Receivables. The Company may appoint any Person as its
agent to perform such services.
(b) The Originator shall, on the date hereof and as each new Purchased
Receivable is originated by it, deliver to the Company (or the Company's agent
appointed pursuant to Section 1.7) all Records and evidence of the creation of
each Purchased Receivable.
(c) Upon the occurrence of a Lock-Box Event, the Originator shall direct
all Obligors to make all payments on all Purchased Receivables to a Lock-Box
Account. Upon the occurrence of a Lock-Box Event, if the Originator nevertheless
receives any such payments it shall hold all cash, checks and other instruments
received by it in trust and promptly (but in any event within two Business Days
after receipt) remit all such Collections, duly endorsed or with duly executed
instruments of transfer in the case of checks or other instruments, to a
Lock-Box Account.
(d) The Originator hereby authorizes the Company (or the Company's agent or
assignee) to notify the Obligors on the Purchased Receivables, or any of them,
of the Company's ownership of the Purchased Receivables. The Originator also
hereby authorizes the Company (or the Company's agent or assignee) to notify
such Obligors, or any of them, of the Company's assignment of interests in the
Purchased Receivables to the Agent, for the benefit of the Purchasers, in
accordance with the terms of Article III of the Receivables Sale Agreement.
(e) The Originator hereby agrees that the Company has the absolute and
unlimited right, itself or through its agent, to commence and settle any legal
action to enforce collection of any Purchased Receivable or to foreclose upon or
repossess any portion thereof.
(f) The Originator hereby grants to the Company an irrevocable power of
attorney, with full power of substitution, coupled with an interest, to take in
the name of the Originator all steps necessary or advisable to endorse,
negotiate or otherwise realize on any item constituting proceeds of any
Purchased Receivable. Without limiting the generality of the foregoing, the
Originator hereby authorizes the Company to take any and all steps in the name
of the Originator and on behalf of the Originator necessary or desirable, in the
determination of the Company, to collect any and all amounts or portions thereof
due under any and all Purchased Receivables, including endorsing the name of the
Originator on checks and other instruments representing Collections and
enforcing any Purchased Receivable.
(g) Unless an Obligor otherwise specifies or another application is
required by contract or law, any payment received by the Originator from an
Obligor shall be applied as a Collection of Purchased Receivables of such
Obligor (starting with the oldest such Receivable) and remitted to the
Collection Agent as such.
(h) In connection with the creation, servicing, administering, and (to the
extent the Originator is appointed to perform collection functions pursuant to
Section 1.7) collecting of the Purchased Receivables, the Originator shall
exercise the same care and diligence it would exercise in handling similar
matters for its own account and will comply at all times and in all material
respects with the terms of the Transaction Documents and the Credit and
Collection Policy.
Section 1.4. The Company's Rights. (a) The Company (or its successors or
assigns) shall retain, and use for its own benefit, the Collections and other
proceeds of all Purchased Receivables, and the Originator shall not have any
interest of any kind in or to any such Collections or other proceeds.
(b) The Company shall have no obligation to account for, to replace, or to
return all or any portion of the Purchased Receivables to the Originator,
without regard to whether the Collections and other proceeds derived from such
Purchased Receivables are in excess of the purchase price paid for such
Purchased Receivables.
(c) The Company shall have the unrestricted right to further assign,
transfer, deliver, hypothecate, subdivide or otherwise deal with all or any
portion of the Purchased Receivables.
(d) The Company (or its successors or assigns) shall have the sole right to
retain any gains or profits created by buying, selling or holding all or any
portion of the Purchased Receivables.
Section 1.5. Protection of Ownership Interest of the Company. The
Originator will, at its expense, promptly execute and deliver all instruments
and documents and take all action necessary or that the Company may reasonably
request to perfect or protect the Company's ownership of the Purchased
Receivables and their Collections or to enable the Company to exercise and
enforce any of its rights hereunder. At the request of the Company, the
Originator shall also execute and file financing statements, amendments thereto,
and continuation or assignments thereof and deliver to the Company or its
designee all contracts and Records (including all multiple originals of any such
contract) relating to the Purchased Receivables, with any appropriate
endorsement or assignment requested by the Company. To the fullest extent
permitted by applicable law, the Company shall be permitted to sign and file
continuation statements relating to the Purchased Receivables and their
Collections and amendments thereto and assignments thereof without the
Originator's signature. A reproduction of this Agreement or of any financing
statement shall be sufficient as a financing statement. The Originator shall not
change its name, identity or corporate structure (within the meaning of Section
9-402(7) of any applicable UCC) or relocate its chief executive office or any
office or location where Records are kept unless it shall have: (i) given the
Company and the Agent at least 20 days' advance notice and (ii) delivered to the
Company and the Agent all financing statements, instruments and other documents
requested by the Company or the Agent in connection with such change or
relocation. The Originator shall at all times maintain its chief executive
offices within a jurisdiction in the USA (other than the states of Florida,
Maryland and Tennessee) in which Article 9 of the UCC is in effect. If the
Originator moves its chief executive office to a location that imposes Taxes,
fees or other charges to perfect the interests of the Company in the Purchased
Receivables, the Originator shall pay all such amounts and any other costs or
expenses incurred to maintain the enforceability of this Agreement and the
ownership of the Company of the Purchased Receivables.
Section 1.6. Contractual Payment Obligations. The Originator hereby agrees
as follows:
(a) If on any day the outstanding balance of a Purchased Receivable is
reduced or canceled as a result of any defective or rejected goods or
services, any cash discount or adjustment (including as a result of the
application of any special refund or other discounts or any
reconciliation), any setoff or credit (whether such claim or credit arises
out of the same, a related, or an unrelated transaction) or other similar
reason not arising from the financial inability of the Obligor to pay
undisputed indebtedness, the Originator shall pay to the Company on such
day the amount of such reduction or cancellation in the outstanding balance
of such Purchased Receivable.
(b) If on any day any representation, warranty, covenant or other
agreement of the Originator is not true (as of the date such representation
or warranty is made or deemed made) or (in the case of a covenant or
agreement) is not satisfied for a Purchased Receivable, the Originator
shall pay to the Company on such day the outstanding balance of such
Purchased Receivable in full.
The Company shall have no recourse to the Originator with respect to any
Purchased Receivable otherwise than pursuant to this Section 1.6.
Section 1.7. Servicing Agent. (a) Until the Company (or the Agent pursuant
to the Receivables Sale Agreement) gives contrary notice, the Company hereby
appoints the Originator as its agent (and as sub-collection agent under the
terms of the Receivables Sale Agreement) for the servicing, administering and
collecting of the Purchased Receivables, and the Orignator hereby accepts such
appointment and agrees to perform such duties in accordance with the applicable
terms and conditions of the Receivables Sale Agreement. The Originator hereby
further agrees not to voluntarily resign as agent for the Company in connection
with such servicing, administering and collecting functions. The Company may
replace the Originator as its agent (and sub-collection agent) at any time for
any reason.
(b) As servicing agent for the Company, the Originator shall take all
actions necessary or advisable to collect each Purchased Receivable with care
and diligence and shall perform all other servicing activities related to such
Receivables as are required by the Collection Agent pursuant to the Receivables
Sale Agreement, including providing reports and other information concerning the
Purchased Receivables required to be furnished by the Collection Agent pursuant
to the Receivables Sale Agreement.
(c) In consideration for the Originator services pursuant to this Section
1.7, for so long as the Originator performs such duties, the Company shall pay
to the Originator a cash fee of $50,000 per month payable on the Monthly
Settlement Date for the immediately preceding month. The parties hereto agree
such servicing fee is a fair market value fee for the servicing functions
required hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Originator. The
Originator represents and warrants, on the date hereof and on the date each
Receivable is created, that each representation and warranty concerning it or
the Receivables that is contained in the Receivables Sale Agreement is true and
correct and that:
(a) Perfection of Ownership Interest. Immediately preceding its sale
of each Purchased Receivable hereunder, the Originator was the owner of
such Purchased Receivable purported to be sold, free and clear of any
Adverse Claims, and each the sale hereunder constitutes a valid sale,
transfer and assignment of all of the Originator's right, title and
interest in, to and under the Purchased Receivables, free and clear of any
Adverse Claims. On or before the date hereof and before the generation by
the Originator of any new Receivable, all financing statements and other
documents required to be recorded or filed in order to perfect and protect
the Company's ownership interest in the Purchased Receivables of the
Originator against all creditors of and purchasers from the Originator will
have been duly filed in each filing office necessary for such purpose, and
all filing fees and taxes, if any, payable in connection with such filings
shall have been paid in full.
(b) Creation of Receivables. The Originator has exercised at least the
same degree of care and diligence in the creation of the Purchased
Receivables as it has exercised in connection with the creation of
receivables originated by it and not sold hereunder.
(c) Credit and Collection Policy. The Originator has complied in all
material respects with its Credit and Collection Policy in regard to each
Purchased Receivable, except for instances of non-compliance with the
Credit and Collection Policy that would not have a material adverse effect
on the collectability of any material amount of the Receivables.
(d) Enforceability of Contracts. Each Purchased Receivable is a legal,
valid and binding obligation of the related Obligor to pay the outstanding
balance of the Purchased Receivable created thereunder, enforceable against
the Obligor in accordance with its terms, (subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and moratorium and similar
laws of general applicability relating to or affecting auditors' rights and
to general equity principles) without being subject to any defense,
deduction, offset or counterclaim and the Originator has fully performed
its obligations under such contract.
(e) Compliance with Laws. No Purchased Receivable contravenes any
laws, rules or regulations applicable thereto or to the Originator.
(f) Chief Executive Office and Location of Records. The chief
executive office of the Originator is located at the address set forth
beneath its signature hereto, and such offices have been so located for at
least six months before the date hereof. The offices where the Originator
keeps all Records are located at the addresses described on Exhibit C or
such other locations of which the Company has been given notice in
accordance with Section 1.5 and where all actions required by Section 1.5
have been completed.
(g) Good Title. Upon the creation of each new Receivable and on the
Initial Purchase Date for then existing Receivables, the Company shall have
a valid and perfected first priority ownership interest in each Purchased
Receivable at the time of such creation or purchase, free and clear of any
Adverse Claim.
(h) Names. Except as described in Exhibit D, the Originator has not
used any corporate names, trade names or assumed names other than its name
set forth on the signature pages of this Agreement.
(i) Assignability and Confidentiality. No Purchased Receivable
requires the Obligor thereon to consent to the transfer, sale or assignment
of the rights to payment of the Originator under such Receivable nor is
subject to a confidentiality provision that purports to restrict the
ability of the Company to exercise its rights under this Agreement,
including its right to review the contract.
(j) Bulk Sales, No Fraudulent Conveyance. No transaction contemplated
hereby requires compliance with or will become subject to avoidance under
any bulk sales act or similar law. No purchase hereunder constitutes a
fraudulent transfer or conveyance under any United States federal or
applicable state bankruptcy or insolvency laws or is otherwise void or
voidable under such or similar laws or principles or for any other reason.
Section 2.2. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) Corporate Existence and Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of its
state of incorporation and has the corporate power required to carry on its
business as now conducted and is qualified to do business in every
jurisdiction where such qualification is necessary, except where failure to
so qualify would not have an adverse effect on its ability to perform its
obligations hereunder.
(b) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Company of this Agreement are
within its corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with,
any governmental body, agency or official (except as contemplated by
Section 1.5) and do not contravene, or constitute a default under, any
provision of applicable law, rule or regulation or of the Company's
certificate or articles of incorporation or by-laws or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Company or result in the creation or imposition of any lien or other
Adverse Claim on any assets of the Company.
(c) Binding Effect. This Agreement constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1. Conditions to Closing. On or before the date of execution
hereof, each of the following documents and instruments shall be delivered, all
of which shall be in form and substance acceptable to the Company and the
Originator:
(a) A copy of the resolutions of the board of directors of the Company
and the Originator, certified by its secretary or assistant secretary,
approving this Agreement and the other documents to be delivered by it
hereunder.
(b) The certificate or articles of incorporation of the Company and
the Originator that it is a corporation certified by the Secretary of State
of its state of incorporation.
(c) Good standing certificates for the Company and the Originator
issued by the Secretaries of State of the states of incorporation of each
such Person and the states in which each such Person's chief executive
office is located.
(d) A certificate of the secretary or assistant secretary of the
Company and the Originator certifying (i) the names and signatures of the
officers authorized on its behalf to execute this Agreement and any other
documents to be delivered by it hereunder (on which certificate the other
parties may conclusively rely until such time as the other parties shall
receive from it a revised certificate meeting the requirements of this
subsection (d)) and (ii) a copy of its by-laws and articles of
incorporation.
(e) Originals of proper UCC-1 financing statements naming the
Originator as "seller", the Company as "purchaser", and the Agent as
"assignee" for filing in all appropriate jurisdictions.
(f) UCC search reports from the office of the Secretary of State of
Indiana covering the Originator.
(g) Such other approvals, opinions or documents as the Company or
Agent may reasonably request.
Section 3.2. Other Transaction Documents. All conditions precedent to the
execution, delivery and effectiveness of the other Transaction Documents have
been fulfilled.
ARTICLE IV
COVENANTS
Section 4.1. Affirmative Covenants of the Originator. The Originator hereby
covenants and agrees with the Company and each Purchaser that at all times on
and after the date hereof, unless compliance is waived pursuant to Section 5.4:
(a) General Information. The Originator shall furnish to the Company
and to each Purchaser such information as the Company or any Purchaser may
from time to time reasonably request.
(b) Furnishing of Information and Inspection of Records. The
Originator will furnish to the Company from time to time such information
concerning the Receivables as the Company shall request, including listings
identifying the Obligor and the outstanding balance for each Receivable.
The Originator will permit, at any time and from time to time during
regular business hours upon reasonable notice, the Company and (under the
conditions in Section 5.1(e) of the Receivables Sale Agreement) the Agent
and any Purchaser or agents or representatives of any of the foregoing, (i)
to examine and make copies of and abstracts from all Records in its
possession as agent for the Company pursuant to Section 1.7 and (ii) to
visit the offices and properties of the Originator for the purpose of
examining such Records, and to discuss matters relating to Receivables or
the Originator's performance hereunder with any of the officers or
employees of the Originator having knowledge of such matters.
(c) Keeping of Records and Books. The Originator will have and
maintain (A) administrative and operating procedures (including an ability
to recreate Records if originals are destroyed), (B) adequate facilities,
personnel and equipment and (C) all Records and other information
reasonably necessary for collection the Receivables originated by the
Originator (including Records adequate to permit the daily identification
of each new such Receivable and all Collections of, and adjustments to,
each existing such Receivable). The Originator will give the Company and
the Agent prior notice of any change in such administrative and operating
procedures.
(d) Performance and Compliance with Receivables. The Originator will
at its expense timely and fully perform and comply with all obligations
required to be observed by it in connection with the Receivables.
(e) Credit and Collection Policy. The Originator will comply with its
Credit and Collection Policy in all material respects in regard to each
Receivable originated by it.
(f) Receivables Sale Agreement. The Originator will perform and comply
with each covenant and other undertaking in the Receivables Sale Agreement
that the Company undertakes to cause the Originator to perform, subject to
any grace periods for such performance provided for in the Receivables Sale
Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1. Term of Agreement. This Agreement shall terminate upon the
later to occur of (i) the termination of the Receivables Sale Agreement or (ii)
the indefeasible payment in full of all obligations owed by the Originator and
the Company to the other hereunder.
Section 5.2. Assignment of Receivables Purchase Agreement. The Originator
hereby acknowledges that on the date hereof the Company has assigned all of its
right, title and interest in, to and under this Agreement to the Agent for the
benefit of the Purchasers pursuant to the Receivables Sale Agreement and that
the Agent and the Purchasers are third party beneficiaries hereof. The
Originator hereby further acknowledges that all provisions of this Agreement
shall inure to the benefit of the Agent and the Purchasers, including in the
enforcement of any provision hereof to the extent set forth in the Receivables
Sale Agreement, but that neither the Agent nor any Purchaser shall have any
obligations or duties under this Agreement. The Originator hereby further
acknowledges that the execution and performance of this Agreement are conditions
precedent for the Agent and the Purchasers to enter into the Receivables Sale
Agreement and that the agreement of the Agent and the Purchasers to enter into
the Receivables Sale Agreement will directly or indirectly benefit the
Originator and constitutes good and valuable consideration for the rights and
remedies of the Agent and each Purchaser with respect hereto.
Section 5.3. No Waiver; Remedies. No failure or delay on the part of any
party in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other further exercise thereof or the
exercise of any other power, right or remedy. The rights and remedies provided
in this Agreement are cumulative and nonexclusive of any rights or remedies
provided by law. Any waiver of this Agreement shall be effective only in the
specific instance and for the specific purpose for which given.
Section 5.4. Amendments, etc. No amendment, supplement, modification or
waiver of any provision of this Agreement nor consent to any departure by any
party therefrom shall in any event be effective unless the same shall be in
writing and signed by the Originator and the Company and consented to by the
Agent and the Instructing Group.
Section 5.5. Notices. Unless otherwise specified, all notices and other
communications hereunder shall be in writing (including by telecopier or other
facsimile communication), given to the appropriate Person at its address or
telecopy number set forth on the signature pages hereof or at such other address
or telecopy number as such Person may specify, and effective when received at
the address specified by such Person. The number of days for any advance notice
required hereunder may be waived (orally or in writing) by the Person receiving
such notice and, in the case of notices to the Agent, the consent of each Person
to which the Agent is required to forward such notice.
Section 5.6. Governing Law; Integration. This Agreement shall be governed
by and construed in accordance with the internal laws (and not the law of
conflicts) of the State of Indiana. This Agreement contains the final and
complete integration of all prior expressions by the parties hereto with respect
to the subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, superseding all prior
oral or written conflicting understandings.
Section 5.7. Severability; Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 5.8. Assignment. This Agreement shall (i) be binding upon the
Company and the Originator and their respective successors and assigns and (ii)
inure to the benefit of and be enforceable by the Agent for the benefit of the
Purchasers to the extent set forth in the Receivables Sale Agreement and their
respective successors, transferees and assigns; provided, however, that the
obligations of the Originator hereunder may not be assigned or delegated without
the prior written consent of the Agent and the Instructing Group, and any such
purported assignment or delegation absent such consent shall be void.
Section 5.9. Headings. Article and Section headings used herein are for
convenience and reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
Section 5.10. Costs and Expenses. The Originator shall pay its costs and
expenses hereunder.
Section 5.11. No Partnership or Joint Venture. Nothing contained in this
Agreement shall be deemed or construed by the parties hereto or by any third
person to create the relationship of principal and agent or of partnership or of
joint venture.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
IPL FUNDING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Treasurer
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Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
INDIANAPOLIS POWER & LIGHT COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: SVP, Finance and Information
Services
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SCHEDULE I
DEFINITIONS
Capitalized terms used herein that are defined in the Receivables Sale
Agreement have the same meaning herein as in the Receivables Sale Agreement. In
addition, the following terms have the meanings set forth, or referred to,
below:
"Agreement" is defined in the first paragraph hereof.
"Determination Date" means, with respect to any Receivable, the later to
occur of (i) the date hereof and (ii) the date such Receivable is created.
"Excluded Receivable" means any Receivable that is a Charge-Off.
"Initial Purchase Date" means December 30, 1996.
"Monthly Settlement Date" means the fifteenth (15th) day of each month (or,
if such day is not a Business Day, the following Business Day).
"Subordinated Note" means the revolving promissory note in substantially
the form of Exhibit B issued by the Company to the Originator.
"Originator Termination Date" means, the earliest to occur of (i) the date
of the occurrence of a Bankruptcy Event affecting the Originator, and (ii) the
Business Day designated by the Company or the Originator as the Originator
Termination Date upon at least thirty days' notice to the Originator and the
Agent.
"Purchased Receivables" means each and every Receivable originated by the
Originator now existing or hereafter arising before the Originator Termination
Date.
"Purchaser" means each "Purchaser" under the Receivables Sale Agreement.
"Receivables Sale Agreement" means the Receivables Sale Agreement, dated as
of the date hereof, among the Company, ABN AMRO Bank N.V., as Agent, the
Liquidity Providers party thereto, ABN AMRO Bank N.V. as Enhancer, and Windmill
Funding Corporation.
"Settlement Period" means, for any Monthly Settlement Date, the immediately
preceding calendar month.
"Workday" means a day in which the Originator and the Company conduct
business.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms. Unless otherwise inconsistent with the
terms of this Agreement, all accounting terms used herein shall be interpreted,
and all accounting determinations hereunder shall be made, in accordance with
GAAP. Amounts to be calculated hereunder shall be continuously recalculated at
the time any information relevant to such calculation changes.
For purposes of this Agreement, all terms used in Article 9 of the UCC and
not specifically defined in this Agreement shall be defined herein as such terms
are defined in the UCC as in effect in the State of Indiana.
EXHIBIT A
CREDIT AND COLLECTION POLICY
To Be Inserted by Indiana Power & Light Company
EXHIBIT B
FORM OF SUBORDINATED NOTE
EXHIBIT C
LOCATION OF RECORDS
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EXHIBIT D
CORPORATE NAMES; TRADE NAMES; ASSUMED NAMES
IPL