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Home My Public Portal About055-2021 -EXHIBIT AIndiana Municipal Power Agency Powe£ Sales Contract This Contract, entered into as of the first day of April, 1982, between INDIANA M[JNICIPAL POWER AGENCY, a body corporate and politic and political subdivision of the State of Indiana, organized and existing under the laws of the State of Indiana (the "Agency"), and the CITY OF RICHMOND (the "Member ") . W I T N E S S E T H: WHEREAS, the Agency was organized under I.C. 8-1-2.2 (the Act") to provide a method for those Indiana cities and towns which own facilities for the distribution of electric power and energy to jointly plan, finance, develop, own and operate electric generation and transmission facilities located within the State of Indiana that are appropriate to the present and projected electric energy needs of such cities and towns; and WHEREAS, the Agency is empowered by the Act. (i) to study, plan, finance, construct, reconstruct, acquire, improve, enlarge, better, own, operate and maintain individually or jointly with one or more municipalities, joint agencies or public utilities one or more plants, works, systems or facilities located in the State of Indiana necessary or convenient in the generation, transmission, transforma- ti on, purchase, sale, exchange or interchange of electric power and energy by any means whatsoever or to acquire any interest therein or any rights to the use, output or capacity thereof, and (ii) to gener- ate, produce, transmit, deliver, exchange, purchase or sell for resale only, electric power or energy, and (iii) to make and execute contracts and other instruments necessary or convenient in the exer- cise of the powers and functions of the Agency under the Act, and iv) to do all acts and things necessary, convenient or desirable to carry out the purposes of, and to exercise the powers granted to, the Agency under the Act; and WHEREAS, the Member owns and operates a municipal electric utility (and owned and operated the same on January 1, 1980) which furnishes retail electric service to the public and is authorized under the Act and the laws of the State of Indiana to contract to purchase from the Agency power and energy and related services; and WHEREAS, in order to secure an adequate, reliable and eco- nomical supply of electric power and energy for the Member's munici- pal electric utility, the Agency and the Member have determined that the Agency will sell to the Member, and the Member will purchase from the Agency, power and energy on the terms and conditions set forth herein; and WHEREAS, the Agency intends to acquire power and energy for sale and delivery to the Momber and to other mombers contracting with the Agency therefor through whatever means it deems advisable, including, without limitation, the purchase thereof from other public utilities and the ownership of generation and transmission facilities or any interest therein or output therefrom; and WHEREAS, in order to enable the Agency to issue its revenue bonds to pay the cost of acquiring and constructing such generation, transmission or other facilities as are useful in meeting. its obliga- tions hereunder, it is necessary for the Agency to have binding con- tracts with the Member and each of the other Participating Members as defined herein) and to pledge the payments required to be made under such contracts as security for the payment of such bonds; NOW, THEREFORE, for and in consideration of the mutual cov- enants and agreements herein contained, it is agreed by and between the parties hereto as follows: SECTION 1. Definitions Bond Resolution shall mean any one or more resolutions, trust agreements, loan agreements or other similar instruments pro- viding for the issuance of Bonds. Bonds shall mean electric utility revenue bonds, notes or other evidences of indebtedness, without regard to the term thereof, whether or not any issue of such Bonds shall be subordinated as to payment to any other issue of Bonds, from time to time issued by the Agency to finance any cost, expense or liability paid or incurred or to be .paid or incurred'by the Agency in connection with the investi- gating, studying, planning, engineering, designing, financing, installing, constructing, acquiring, operating, maintaining, retir- ing, decommissioning or disposing of any part of the System or other- wise paid or incurred or to be paid or incurred by the Agency in con- nection with the perf ormance of its obligations under the Power Sales Contracts or for any other lawful purpose permitted under the Act for the System. Contract Rate of Delivery shall have the meaning given to such term in Section 3 hereof. Participating Members shall mean the Member and those mem- bers of the Agency that are, or hereaf ter. become, parties to Power Sales Contracts. Point of Delivery shall mean any point at which the Agency shall be required to deliver power and energy to the Member as set forth in paragraph 2 of Schedule A hereto, as amended from time to time. Point of lieasurement shall mean any point at which the Agency shall be required to meter power and energy delivered to the Member as set forth. in paragraph 3 of Schedule A hereto, as amended 2- from time to time. It is understood that paragraph 3 of Schedule A shall include as a Point of Measurement the point of inter connecti on between any generating facility owned by the Member and the Member's distribution system. Power Sales Contracts shall mean this Contract and other contracts providing for the sale of power and energy by the Agency to other members, as amended from time to time, provided that it shall not include any such contract which expressly provides that it is not to be considered a Power Sales Contract. Power Supply Resources shall have the meaning given to such term in Section 3 her eof. Prudent Utility Practice shall mean, at a particular time, any of the practices, methods and acts which, in the exercise of rea- sonable judgment in the light of the facts (including but not limited to the practices, methods and acts engaged in or approved by a sig- nificant portion of the electrical utility industry prior thereto) known at the time the decision was made, would have been expected to accomplish the desired result at a reasonable cost consistent with reliability and safety. Prudent Utility Practice is not intended to be limited to the optimum practice, method or act, to the exclusion of all others, but rather to be a number of possible practices, methods or acts. Rate Schedule shall mean the rate schedule setting forth the rate for payments by the Member for electric power and energy delivered hereunder attached hereto as Schedule B, which Schedule B may be revised from time to time by a new schedule adopted by the Agency including, without limitation, any amendment, change, deletion or addition to any of the billing components, terms or conditions, or any adjustment set forth therein, including, but not limited to, amending billing demand to provide for minimum demand whether or not based on prior demand measurements. Revenue Requir~ents' shall mean all costs and expenses paid or incurred or to be paid or incurred by the Agency resulting from the owner ship, operation, maintenance, termination, retirement from service and decommissioning of, and repair, renewals, replacements, additions, improvements, betterments and modifications to, the System or otherwise relating to the acquisition and sale of power and energy and transmission services and performance by the Agency of its obli- gations under the Power Sales Contracts, including, without limita- ti on, the following items of cost: 1) payments of principal of and premium, if any, and interest on all Bonds issued by the Agency and payments which the Agency is required to make into any debt service reserve fund or account under the terms of any Bond Resolution or other contract with holders of Bonds; 3- 2) amounts required under any Bond Resolution to be paid or deposited into any fund or account established by such Bond Resolution (other than funds and accounts referred to in clause (1) above), including any amounts required to be paid or deposited by reason of the'transfer of moneys from such funds or accounts to the funds or accounts referred to in clause (1) above; 3) amounts which the Agency may be required to pay for the prevention or correction of any loss or damage or for renewals, replacements, repairs, additions, improve- ments, betterments, and modifications which are necessary to keep any facility of the System in good operating condi- tion or to prevent a loss of revenues therefrom; 4) costs of operating and maintaining the System and of producing and delivering power and energy therefrom including fuel costs, administrative and general expenses and working capital, for fuel or otherwise, and taxes or payments in lieu thereof) not included in the costs speci- fied in the other items of this definition and costs of power supply planning and implementation associated with meeting the Agency's power supply obligations; 5) the cost of any electric power and energy pur- chased for resale by the Agency under the Power Sales Contracts and the cost of transmission service for delivery of electric power and energy under the Power Sales Contracts; vage, sale 6) all costs incurred or associated discontinuance, decommissioning and of properties; with the sal- disposition or 7) all costs and expenses damage claims required to be paid relating to injury and by the Agency; 8) any reserves the Agency shall determine to be necessary for the payment of those items of costs and expenses referred to in clauses (1) through (7) above to the extent not already included in such clauses; and 9) additional amounts which must be realized by the Agency in order to meet the requirement of any rate cove- nant with respect to coverage of principal of and interest on Bonds contained in any Bond Resolution or contract width holders of Bonds or which the Agency deems advisable in the marketing of its Bonds. System shall mean all properties, rights and interests in properties of the Agency, including all electric production, 4- transmission, delivery facilities, general plant and other related facilities and any mine, well, pipeline, plant, structure or other facility for the development, production, manufacture, storage, fab- rication or processing of fossil, nuclear or fuel of any kind or any facility or rights with respect to the supply of water, in each case for use, in whole or in major part, in any of the Agency's generating plants, now existing and hereafter acquired by lease, contract, pur- chase or otherwise or constructed by the Agency, including any inter- est or participation of the Agency in any such facilities, together with all additions, betterments, extensions and improvements to said system or any part thereof hereafter made and together with all lands, easements and rights of way of the Agency and all other works, property or structures of the Agency and rights to the use of any thereof or the output, products or services therefrom or other con- tract rights, including, without limitation, rights for the purchase of power and energy, transmission or other services from others, and other tangible and intangible assets of the Agency used or useful in connection with or related to said system. Notwithstanding the foregoing definition of the term System, such term shall not include any properties or interests in properties of the Agency which the Agenc'y determines shall not con- stitute a part of the System for the purposes of this Contract. SECTION 2. Term This Contract shall become effective upon the issuance of an order by the Public Service Commission of Indiana acceptable to the Agency approving the Agency's acquisition of and financing for an approximate twenty-five percent (25%) undivided ownership interest in the 650 MW coal-fired generating unit (commonly referred to as the Gibson Unit No. 5) being constructed by Public Service Company of Indiana, Inc. This Contract shall remain in effect until April 1, 2032; provided, however, this Contract may be terminated by the Member at such time that all Bonds shall have been paid or provision for such payment shall have been made therefor pursuant to the Bond Resolution and all contractual obligations entered into by the Agency for the generation, purchase, transmission or transformation of power and energy have been terminated and provision has been made for the payment of any residual costs thereof. SECTION 3. Sale and Purchase of Electricity a) The Agency hereby agrees to sell and deliver to the Member, and the Member hereby agrees to purchase and receive from the Agency, commencing January 1, 1983 or such earlier date as shall be determined by the Agency upon thirty days notice to the Member and extending through the term hereof, all electric power and energy which the Member shall require for the operation of its municipal electric system; provided, however, that after December 31, 2002, 5- the maximum amount of power required to be sold and delivered by the Agency and purchased and received by the Member hereunder shall not exceed the Contract Rate of Delivery determined as follows: the "Contract Rate of Delivery" shall be the peak demand of the Member for power and energy under this Contract during the 60 billing peri- ods preceding December 31, 2002, as~determined by the Agency, adjusted up or down by not more than 10% so as to provide optimal utilization of the Agency's Power Supply Resources, such adjustment to be made by the Agency upon the advice of the consulting engineer to the Agency. Power Supply Resources" shall mean those resources for the production of electric power and energy included in the System to the extent the same are employed by the Agency to supply the electric power and energy sold under the Power Sales Contracts. On or before January 1, 1999, and on or before January 1 of each year thereafter, the Agency shall advise the Member of the Agency's then best estimate of what the Member's Contract Rate of Delivery hereunder will be for the period after December 31, 2002. On or before December 31, 2002, the Agency shall notify the Member of the Member's actual Contract Rate of Delivery for the period after December 31, 2002. In the event that, pursuant to the Public Utility Regulatory Policies Act of 1978 or other provisions of law, electric power is required to be purchased from a small power production facility, a cogeneration facility or other facility, the Member and the Agency shall use their best efforts to arrange for such purchases to be made by the Agency. If such arrangements cannot be made, then the Member shall make the required purchases and sell the power purchased to the Agency at a price equal to the price paid by the Member. The Member appoints the Agency to act as its agent in all dealings with the owner of any such facil- ity from which power is to be purchased and in connection with all Other matters relating to such purchases. b) The Member hereby commits itself to take and pay for all of the electric power and energy which it is required to take and receive under paragraph (a) of this Section 3 and which is made available to the Member hereun- der at its Points of Measurement, such payments to be made at rates set forth in the Rate Schedule, as revised from time to time by the Agency. c) The Agency is hereby authorized by the Member i) to undertake projects from time to time which, in the sole discretion and exclusive judgment of the Agency, are necessary or desirable to enable the Agency to fulfill satisfactorily its obligations to use its best efforts to 6- supply power and energy to the Member pursuant to this Contract and (ii) to issue Bonds for the purpose of paying all or any part of the costs of any of the projects or pur- poses authorized by the Act. SECTION 4. Electric Characteristics, Points of Delivery and Measurement Electricity to be furnished hereunder shall be three phase, sixty hertz alternating current. The Member shall make and pay for all connections between the system of the Member and the system of the Agency at the Points of Delivery. The Points of Delivery, the Points of Measurement and the delivery voltage shall be as set forth in Schedule A attached hereto, which Schedule may be amended from time to time to include such other Point or Points of Delivery and Point or Points of Measurement and delivery voltage as may be agreed upon by the Agency and the Member. Other provisions of Schedule A may be amended from time to time by the Agency in accordance with Prudent Utility Practice. The Member shall install, own and maintain any necessary substation equipment at the Points of Delivery and shall install, own and maintain switching and protective equipment of adequate design and sufficient capacity on the Member's side of such Points of Delivery to enable the Member to take and use the power and energy supplied under this Contract without hazard to the System. The Agency shall not be responsible for the transmission, control, use or application of power and energy provided under this Contract on the Member's side of the Point of Delivery. The Member shall not be responsible for the transmission, control, use or application of power and energy provided under this Contract on the Agency's side of the Point of Delivery. When electricity is measured at more than one Point of Measurement, the maximum total coincident demand of the Member's system shall be determined by combining the recorded demand at each Point of Measurement during the same 60 minute interval. SECTION 5. Rates a) The Member shall pay the Agency for all electric power and energy furnished at the Points of Measurement hereunder at the rates and on the terms and conditions set forth in the Rate Schedule. The Agency may revise and place into effect new Rate Schedules from time to time. The Member agrees to pay the rates and charges set forth in the revised Rate Schedules from the effective date established by the Agency. In the event that, during any portion of any billing period, electric power is made 7- available to the Member by the Agency in accordance with this Contract which the Member is required to take and receive pursuant to Section 3 hereof but which the Member fails to take and receive, the Member shall pay the Agency for such availability in an amount equal to the product of the demand charge in the Rate Schedule and the billing demand computed as provided in the Rate Schedule except that, for such purpose, the kilowatts of demand for such billing period shall be based upon the kilowatts that would have otherwise been taken as evidenced by the total elec- tric power consumed by the Member's customers during the billing period. Payments made by the Member under the Rate Schedule shall be treated as an operating expense from the revenues of the Member's electric utility system, or other integrated utility system of the Member of which the Member's electric utility system may be a part, to the extent permitted by law, and from other funds of such system legally available therefor and shall be in addition to and not in substitution for any other payments whether on account of dues or otherwise owed by the Member to the Agency. The obligation of the Member to make payments under the Rate Schedule shall not constitute a general obligation of the Member and the Member shall not be required to make such payments from any source other than the revenues and funds referred to in the next preceding sentence. The obligation of the Member to make payments under the Rate Schedule shall not be subject to any reduc- tion, whether by offset, counterclaim, recoupment or other- wise, and shall not be otherwise conditioned upon the per- formance by the Agency under this or any other agreement or instrument; provided, however, that nothing contained herein shall be construed to prevent or restrict the Member from asserting any rights which it may have against the Agency under this Contract or under any provision of law, including the institution of legal proceedings for specific performance or recovery of damages. The to be a part of of Sections 5(a) electric utility nues of one or Member, or (ii) Member's electric utility system shall be deemed an integrated utility system for purposes and 7(a) hereof if the revenues of the system (i) are commingled with the reve- more other utility systems owned by the are utilized to pay operating expenses of the Member's electric utility system and one or more other utility systems owned by the Member, or (iii) are pledged to secure bonds issued to finance one or more other utility systems owned by the Member. For purposes of this para- graph, the term "commingled" shall not be deemed to include the keeping of funds in one bank account so long as such funds are separately accounted for on the books and records of the Member. 8- b) The Agency shall establish and maintain rates in the Rate Schedule hereunder and under the other Power Sales Contracts which will provide revenues which are sufficient, but only sufficient, together with other available funds of the Agency, to meet the estimated Revenue Requirements of the Agency. In determining the rates necessary to produce sufficient revenues, the Agency shall take into account any anticipated delinquency or default in payments by Members under the Power Sales Contracts. The ratemaking methods used by the Agency to establish rates shall be consistent wi th Prudent Utility Practice. At such intervals as it shall determine appropriate, but in any event not less frequently than once each calen- dar year, the Board of Commissioners of the Agency shall review and, if necessary, revise the Rate Schedule to insure that the rates thereunder continue to cover its estimate of the Revenue Requirements. which shall be the mailing of by an analysis which the Rate de r iv ati on of c) In connection with any revision of the Rate Schedule, the Agency shall cause a notice in writing to be given to all Members which shall set out any proposed revi- si on of the Rate Schedule wi th the effective date thereof, not less than sixty days after the date of the notice, and which shall be accompanied of the estimated Revenue Requirements for Schedule is proposed to be revised and the the proposed rate. The Member agrees to pay for electric power and energy made available by the Agency to it hereunder 'after the effective date of any revision in the Rate Schedule in accordance with the Rate Schedule as so revised. Revisions of the Energy Cost Adjustment and the Control Area Cost Differential Factors set forth in Schedule B hereto or any substitutes or replacements thereof shall not require submission of the analysis of estimated Revenue Requirements and the derivation of the proposed adjustment to the Members. SECTION 6. Covenants of the Agency a) After satisfying, to the extent provided for herein, the total requirements of all Participating Members, the Agency shall use its best efforts to market and dispose of, under the most economically advantageous terms and conditions obtainable, all its surplus electric power and energy which in the sole judgment of the Agency can be disposed of without adversely affecting performance by the Agency under this Contract so long as it shall not result in the breach of any Agency covenant or contract. 9- b) The Agency shall use its best efforts while following Prudent Utility Practice to provide a constant and uninterrupted supply of electric power and energy under this Contract. In the event that the Agency is not able to supply all of the electric power and energy requirements of all of the Participating Members that it is required to supply hereunder, it shall use its best efforts to allocate its electric power and energy available from its Power Supply Resources during any billing period among the Member and the other Participating Members as follows: prior to January 1, 2003 such allocation shall be made pro rata in accordance with their respective electric power and energy requirements supplied hereunder billing period of the preceding ter such allocation shall be ma wi th the Contract Rate of Deliv Member. During any period the during the corresponding calendar year and thereaf- de pro rata in accordance ery of each Participating Agency is unable to supply all of the Member's electric power and energy requirements that it is required to supply hereunder, the Agency shall not in any ca se be liable to the Member for damages result- ing from such interruption of service and the Member shall be permitted to acquire from other sources such amount of electric power and energy which is not supplied by the Agency; provided, however, that at such time as the Agency is thereafter again ~able to supply all of the Member's electric power and energy requirements that it is required to supply hereunder, the Member shall be required to take and pay for such electric power and energy in accordance wi th the provisions her eof. c) The Agency shall use its best efforts to acquire, by purchase or otherwise, and to deliver or cause to be delivered to the Points of Delivery, power and energy in the manner determined by the Agency to be most economical, dependable and otherwise feasible. d) In addition to the delivery of power and energy pursuant to this Contract and the performance of all acts and actions incident thereto, the Agency agrees that it will perform or cause to be performed services, including, but not limited to: (i) coordinating and monitoring the investigating, studying, planning, engineering, designing, financing, installing, constructing, acquiring, operating, maintaining, retiring, decommissioning or disposing of any part of the System; (ii) issuing and selling Bonds; iii) planning, undertaking, coordinating and monitoring the economic dispatching and scheduling of power and energy to the Members, but only to the extent that the Agency pos- sesses at the time its own load control capability; and iv) providing such other services as the Agency from time to time shall determine to be appropriate or necessary to 10- provide an adequate, reliable power and energy to the Members. and economical supply of SECTION 7. Covenants of the Member a) The Member agrees to maintain rates for electric power and energy to its consumers subject to the approval of the Public Service Commission of Indiana under and pur- suant to the provisions of I.C. 8-1-2 and 8-1-2.2, to the extent the Member is subject thereto, which shall provide to the Member revenues sufficient to meet its obligations to the Agency under this Contract; to pay all other operat- ing expenses; to pay all obligations, whether now outstand- ing or incurred in the future, payable from, or constitut- ing a charge or lien on, the net revenues of its electric system; and to make any other payments required by Indiana law; and, at the option of the Member, to provide any addi- tional revenues permitted under Indiana law. The Member agrees to use its best efforts to take all actions neces- sary or convenient to fulfill its obligations under this Section 7(a), including, but not limited to, making timely applications for rate increases and processing such appli- ca tions wi th diligence. The Member further covenants and agrees that if it maintains or establishes an integrated utility system of which its electric system is a part for its electric, water, gas, cable television, telephone and sanitary sewer systems (or any combination of two or more thereof which includes its electric and collect rates and its integrated utility at least sufficient expenses attributable including the expenses system), it will establish, maintain charges ~for the services provided by system which shall produce revenues to enable the Member to pay all to the integrated utility system, incurred in the operation and main- tenance of the integrated utility system (including the obligations under this Contract), to pay the debt service requirements on any bonds, notes or other evidences of indebtedness, whether now outstanding or incurred in the future, secured by such revenues and issued to finance improvements to the integrated utility system and to make any other payments required by Indiana law. The under this Contract except from Member' s electric utility system, or i ty system of the Member of which system is a part, and from other legally available therefor. In no be required to make payments under rev enue s. Member shall not be required to make payments the revenues of the other integrated util- the electric utility funds of such system event shall the Member this Contract from tax 11- b) The Member shall not sell at wholesale any of the electric pow er and energy delivered to it hereunder to any customer of the Member or any other entity for resale by that customer or entity, unless it has first given the Agency 60 days written notice of its intent to sell such power and energy. The Agency, after receipt of such notice, shall have 30 days in which to impose limits on the amount of power and energy to be sold or to veto such sale if the sale will jeopardize the Agency's availability of resources to serve its Members or increase the cost of pow er and energy to the Agency. di in of i an el al an c) The Member shall not sell, lease or otherwise spose of all or substantially all of its electric system cept on 90 days' prior written notice to the Agency and, any event, shall not so sell, lease or otherwise dispose the same unless the following conditions are met: the Member shall assign this Contract and its rights d interest hereunder to the purchaser or lessee of the ectric system and such purchaser or lessee shall assume 1 obligations of the Member under this Contract; (ii) if d to the extent necessary to reflect such assignment and iv) the Agency of recognized s muni ci pal bonds sale, lease or o the value of thi Bonds and the in status of the in Agency as that s Internal Revenue assumption, the Agency and such purchaser or lessee shall enter into an agreement supplemental to this Contract to clarify the terms on which power and energy are to be sold hereunder by the Agency to such purchaser or lessee; iii) the senior debt of such purchaser or lessee shall be rated in one of the four highest whole rating categories by at least one nationally-recognized bond rating agency; shall have received an opinion of counsel tanding in the field of law relating to selected by the Agency stating that such ther .disposition will not adversely affect s Contract as security for the payment of terest ther eon terest on any tatus is gover Code of 1954, or jeopardize the tax-exempt Bond or Bonds issued by the ned by Section 103(a) of the as amended, and the Treasury Regulations or any ruling as promulgated thereunder or as affected by a decision of any court of competent j urisdic- ti on; (v) an opinion shall be obtained from counsel of assignee and the Agency that the assignment is lawfully permitted under I.C. 8-1-2.2; and (vi) the rates to be paid by the assignee, if a public utility, have been approved by the Public Service Commission of Indiana. d) The Member covenants and agrees that it shall take no action the effect of which would be to prevent, hinder or delay the Agency from the timely fulfillment of its obligations under this Contract, any outstanding Bonds or any Bond Resolution of the Agency. 12- e) The Member Covenants and agrees that it shall not use or permit to be used any of the power and energy acquired under this Contract in any manner or for any pur- pose or take any other action or omit to take any action which would result in the loss of the tax-exempt status of the interest on any Bond or Bonds issued by the Agency as that status is governed by Section 103(a) of the Internal Revenue Code of 1954, as amended, and the Treasury Regulations or any rulings promulgated thereunder or as affected by a decision of any court of competent jurisdiction. The Member covenants that, prior to entering into any contract whereby a per son agrees to take, or to take or pay for, power and energy provided to the Member under this Contract, the Member shall notify the Agency of its intent to enter into such contract. As soon as practi- cable after receipt of such notice, the Agency shall advise the Member as to whether, in the opinion of counsel of rec- ognized standing in the field of law relating to municipal bonds selected by the Agency, the entering into of such contract would tained in this Agency advises might result, contract. result in a violation of the covenant con- subsection. The Member agrees that if the the Member that such a violation will or the Member will not enter into such f) The Member covenants and agrees that it shall, in accordance with Prudent Utility Practice, (1) at all times operate the properties of its electric system and the busi- ness in connection therewith in an efficient manner, (2) maintain its electric system in good repair, working or der and condition and (3) from time to time make all necessary and proper repairs, renewals, replacements, additions, bet- terments and improvements with respect to its electric system so that all times the business carried on in connec- tion therewith shall be properly and advantageously con- ducted; provided, however, this covenant shall not be con- strued as requiring the Member to expend any funds which are derived from sources other than the operation of its electric system and provided further that nothing herein shall be construed as preventing the Member from doing so. g) The Member covenants and agrees that it shall not issue bonds, notes or other evidences of indebtedness or incur lease obligations which are payable from the revenues derived from its electric system superior to the payment of the operating expenses of its electric system; provided, however, that nothing herein shall limit the Member's present or future right to issue bonds, notes or other evi- dences of indebtedness or incur lease obligations which are payable on a parity with operating expenses or payable from revenues after payment of o~perating expenses. 13- SECTION 8. Meter Readings and Payment of Bills a) The Agency shall read meters or cause meters to be read at monthly intervals which coincide with the bill- ing period established by the Agency in accordance with the Rate Schedule. The Member shall pay for electric power and energy furnished hereunder at the office of the Agency, 5920 Castleway West Drive, Indianapolis, Indiana 46250 within 30 days of the bill; provided, however, that if said 30th day is a Sunday or legal holiday in the State of Indiana, the next following business day shall be the day on which such payment shall be due. In the event that the Member fails to make payment when due of any amount owing hereunder, the Agency may impose a late payment charge as provided in the Rate Schedule. The Agency shall bill the Member on a prompt and timely basis in accordance with a schedule to be determined by the Agency. The Agency may, whenever any amount due remains unpaid after the due date, take all steps available to it under applicable law to collect such amount and, after giving 15 days' advance notice in writing of its intention to do s°, discontinue service hereunder if permitted by law. The Agency may, whenever any amount due remains unpaid for 120 or more days after the due date and after giving 30 days' advance notice in writing of its intention to do so, terminate this Contract. No such dis- continuance or termination shall relieve the Member from liability for payment for electric power and energy fur- nished hereunder. b) In the event the Member desires to dispute all or any part of a bill, the Member shall nevertheless pay the full amount of the bill when due and notify the Agency in writing of the grounds on which any charges in the bill are disputed and the amount in dispute. The Member will not be entitled to any adjustment on account of any disputed charges which are not brought to the attention of the Agency in the manner herein specified. Such adjustment shall be for the time period for which it can be estab- lished a billing error took place but in no event shall the adjustment period extend past 365 days or, in the event of meter err ors, the date of the last meter test. SECTION 9. Metering a) The Agency shall furnish or cause to be fur- nished, install and maintain the necessary metering equip- ment required at each Point of Measurement of the Member to measure and record the electric power and energy furnished hereunder at such Point of Measurement. Such metering 14- equipment shall provide a continuous record of the 60 minute integrated total demand of the Member at such Point of Measurement during each billing period throughout the term of this Contract. Such records shall be available at all reasonable times to authorized agents of the Member. The Member may, at its own cost, install additional meter- ing equipment to provide a check on the Agency's metering equipment, as long as the Member's additional metering equipment does not interfere with the functioning, opera- tion, or maintenance of the Agency's metering. b) The Agency shall test and calibrate meters or cause meters to be tested and calibrated by comparison with accurate standards at intervals of not less than twelve months. The Agency shall also make or cause to be made special meter tests at any time at the Member's request. The cost of all tests shall be borne by the Agency except that if any special meter test made at the Member's request shall disclose that the meters are recording accurately, the Member shall reimburse the Agency for the cost of such test. Meters registering not more than two percent above or below normal shall be deemed to be accurate. The read- ings for any meter which shall have been disclosed by test to be inaccurate shall be corrected in accordance with the percentage of inaccuracy found by such test from the begin- ning of the first billing period which began after the next preceding meter test but in any case for no period longer than 365 days. Should any meter fail to register, the electric power and energy delivered during such period of failure shall for billing purposes be estimated by the Agency after consultation with the Member from the best information available. The Agency shall notify the Member or cause the Member to be notified in advance of the time of any meter reading or test so that the Member's represen- tative may be present at such meter reading or test. c) For a fractional part of a billing period at the beginning or end of service, demand charges under the Rate Schedule shall be proportionately adjusted by the Agency in the ratio that the number of hours that electric service is furnished to the Member (in such fractional billing period) bears to the total number of hours in the billing period involved. Except as provided in this paragraph (c) of this Section 9 with respect to fractional billing periods at the beginning and end of service, there shall be no proration of demand charges under the Rate Schedule for any billing period during any part of which power is made available to the Member. d) Neither the Agency nor the M~mber shall be responsible for the transmission, control, use or 15- application of electric pow er provided under on the other side of the Point of Delivery shall not, in any event, be liable for damage any per son or ~property whatsoever arising, resulting from, in any manner, the receiving, control, use, application, or distribution by the Member of said electric power. this Contract therefor and or injury to accruing, or transmi ssi on, the Agency or SECTION 10. Right of Access shall be times in Duly authorized representatives of the Agency and Member permitted to enter the other's premises at all reasonable order to carry out the provisions of this Contract. SECTION 11. Uncontrollable Forces' Neither the Agency nor the Member shall be considered to be in default in respect to any obligation hereunder (other than the obligation of the Member to pay for electric power and energy made available hereunder to the extent payment is required by Section 5(a) hereof) if prevented from fulfilling such obligations by reason of uncontrollable forces, the term uncontrollable forces being deemed for the purposes of this Contract to mean any cause beyond the con- trol of the party affected, including, but not limited to, failure of facilities til ence, w and r estra and f oresi avoid. Ei reason of r em ov e flood, earthquake, storm, lightning, fire, epidemic, pes- ar, riot, civil disturbance, labor disturbance, sabotage, int by court or public authority, which by due diligence ght such party could not reasonably have been expected to ther party rendered unable to fulfill any obligation by uncontrollable forces shall exercise due diligence to such inability wi th all reasonable dispatch. SECTION 12. Power Factor The Member shall maintain its' syst~n power factor in accor- dance with paragraph 4 of Schedule A hereto. SECTION 13.Cooperation If it becomes necessary by reason of any emergency or extraordinary condition for either the Agency or the Member to request the other party to furnish personnel, materials, tools, or equipment for the accomplishment of its obligations hereunder, the party so requested shall cooperate with the requesting party and render such assistance as the party so requested may determine to be available. The party making such request, upon receipt of properly itemized bills from the other party, shall promptly reimburse the other pa.rty for all costs properly and reasonably incurred by it in providing such assistance. The cost shall include an amount not to exceed ten percent (10%) for administrative and general expenses; such costs are to be determined on the basis of current charges or 16- rates used assistance. in its own opera tions by the party rendering the Standards SECTION 14. Construction, Operation and Maintenance The Member shall own, install and maintain electrical pro- tective relaying equipment at each point of interconnection with the Agency's transmission system. The design and operating characteris- tics of such equipment shall be coordinated with the Agency and subject to the Agency's approval, which approval shall not be unrea- sonably wi thheld. SECTION 15.Assignment of Power Sales Contract a) This Contract shall inure to the benefit of and shall be binding upon the respective successors and assigns of the parties to this Contract; provided, however, that, except for the assignment by the Agency authorized by clause (b) of this Section 15 and except for any assignment in connection with the sale, lease or other disposition of all or substantially all of the Member's electric system as provided in Section 7(c) hereof, neither this Contract nor any interest herein shall be transferred or assigned by either party hereto except with the consent in writing of the other party hereto, which consent shall not be unrea- sonably withheld. No assignment or transfer of this Contract shall relieve the parties of any obligation hereunder. b) The Member .acknowledges and agrees that the Agency may assign and pledge to any trustee or similar fiduciary designated in any Bond Resolution all of, or any interest in, its right, title, and interest in and to all payments to be made to the Agency under the provisions of this Contract as security for the payment of the principal including sinking fund installments) of, premium, if any, and interest on any Bonds and may deliver possession of this Contract to such trustee in connection therewith, and, upon such assignment, pledge and delivery, the Agency may grant to such trustee any rights and remedies herein pro- vided to the Agency and thereupon any reference herein to the Agency shall be deemed, with the necessary changes in detail, to include such trustee which shall be a third party beneficiary of the covenants and agreements of the Member herein contained. Upon any such assignment, pledge and delivery, such trustee shall fulfill all of the obliga- tions with respect to the Member that the Agency was required to fulfill prior to such assignment, pledge and delivery. 17 - SECTION 16. Records and Accounts The Agency shall keep accurate records and accounts of its properties and its operations in accordance with or so as to permit conver sion to the Federal Energy Regulatory Commission Uniform System of Accounts prescribed for Class A and Class B Public Utilities and Licensees as in effect from time to time. Should the Federal Energy Regulatory Commission be modified or cease to exist, the records shall be maintained under the Uniform System of Accounts as adopted or used by whatever agency succeeds or takes over the duties of the Federal Energy Regulatory Commission. The Member shall have the right at any reasonable time to examine such accounts. The Agency shall cause such accounts to be audited annually by a firm of inde- pendent public accountants of national reputation and shall supply copies of such audits to the Member. SECTION 17. Information The Agency and the Member will promptly furnish to each other such information as may be reasonably requested from time to time in order to carry out more effectively the intent and purpose of this Contract or as may be reasonably necessary and convenient in the conduct of the operations of the party requesting such information. Without limiting the generality of the foregoing, the Member shall, upon request, furnish to the Agency all such information, certifi- cates, engineering reports, feasibility reports, information relating to load forecasts and generation and transmission expansion plans, financial statements, opinions of counsel (including the opinion required by Section 19 hereof), official stat~ents and other docu- ments as shall be reasonably necessary in connection with financings of the Agency. The Agency shall furnish the Member with those reports required to be furnished pursuant to I.C. 8-1-2.2-25 and such other information reasonably available to it which may be requested by the Member. SECTION 18. Amendment Except as provided for expressly herein, neither this Contract nor any terms hereof may be terminated, amended, supple- mented, waived or modified except by an instrument in writing exe- cuted by each party to this Contract. SECTION 19. Opinions as to Validity Upon request by the Agency after the execution and delivery of this Contract, the Member shall furnish the Agency, in form and substance satisfactory to the Agency, with (i) an opinion of its city or town attorney or attorney employed by the Member or certificates from the Member and (ii) an opinion of Ice Miller Donadio & Ryan to the effect that: 18- a) The Member is a municipal corporation duly created and validly existing pursuant to the Constitution and statutes of the State of Indiana and its "governing body" (as defined in Section 2(d) of the' Act) is the Common Council of the City of Richmond. b) The Member has full enter into this Contract and hereunder. legal right and authority to to carry out its obligations c) The city council or town board duly approved this Contract and its execution and delivery on behalf of the Member by ordinance duly and lawfully adopted at a meeting or meetings duly called and held at which quorums were present and acting throughout and such meeting or meetings were called pursuant to necessary public notice. d) This Contract has been duly authorized, executed and delivered by the appropriate officers of the Member; and, assuming that the Agency has all the requisite power and authority to execute and deliver, and has duly autho- rized, executed and delivered, this Contract, this Contract constitutes the legal, valid and binding obligation of the Member in accordance with its terms subject, however, to the effect of, and to restrictions and limitations imposed by or resulting from, bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors' rights generally. No opinion need be rendered as to the availability of any particular remedy. e) The execution and delivery of this Contract by the Member, the performance by the Member of its obliga- tions hereunder and the consummation of the transactions cont°emplated herein do not and will not contravene any existing law or any existing order, injunction, judgment, decree, rule or regulation of any court or administrative agency having jurisdiction over the Member or its property or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any existing bond ordinance, trust agreement, indenture, mortgage, deed of trust or other agreement to which the Member is a party or by which it or its property is bound. f) Ail approvals, consents or authorizations of, or registrations or filings with, any governmental or public agency, authority or person required on the part of the Member in connection with the execution, delivery and per- formance of this Contract have been obtained or made. g) To the knowledge of such attorneys after due inquiry, there attorney or firm of is no litigation or 19- other proceedings pending or threatened in any court or other tribunal of competent jurisdiction (either State or Federal) questioning the creation, organization or exis- tence of the Member or the validity, legality or enforce- ability of this Contract. SECTION 20. Relationship to and Compliance with Other Instruments It is recognized by the parties hereto that, in undertak- ing, or causing to be undertaken, the pl~mning, financing, construc- tion, acquisition, operation and maintenance of the System, the Agency must comply with the roquirements of any Bond Resolution, any agreement with any owner or co-owner of or participant or co-partici~ant in any facility included in the Systom relating to the construction, operation or maintenance thereof and all licenses, per- mits and regulator~ approvals necessar~ for such planning, financing, construction, acquisition, operation and maintenance, and it is therefore agreed that this Contract is made subject to the terms and provisions of any Bond Resolution, any such agreement and all such licenses, permits, and regulatory approvals. SECTION 21. Notices Any notice, demand or request required or authorized by this Contract shall be pro[::~rly given if mailed, postage prepaid, to the Agency at 5920 Castleway West Drive, Indianapolis, Indiana 46250, Attention: General Manager, and to the Member at: Richmond Power and Light P.O.Box 908 Richmond, Indiana 47374 Att: Mr. Irving A. Huffman General Manager The foregoing addresses may be changed by similar notice at any time. SECTION 22. Waivers a) Any waiver at any time by either party hereto of its rights with respect to a default or any m~itter arising in connection with this Contract shall not be deemed to be a waiver with respect to any subsequent default or matter. b) The failure of either party hereto to enforce at any time any of the provisions of this Contract or t° require at any time performance by the other party hereto of any of the provisions hereof shall in no way be construed to be a waiver of such provisions nor in any way to affect the validity of this Contract or the right of such party thereafter to enforce each and every provision hereof. 20- SECTION 23.Severability In of this Contract, condition, shall any court having of this Contract ditions to such thereby. the event that any of the terms, covenants or conditions or the application of any such term, covenant or be held invalid as to any person or circumstance by jurisdiction under the circumstances, the remainder and the application of its terms, covenants or con- persons or circumstances shall not be affected SECTION 2 4.Appl icabl e Law This Contract dance wi th the laws of shall be the State governed by and construed in accor- of Indiana. SECTION 25.Termination In addition to any ground for termination- provided in this Contract, this Contract shall terminate on January 1, 1983 in the event the Agency does not prior thereto (i) enter into contracts wi th Public Service Company of Indiana, Inc. to acquire an undivided ownership interest of approximately twenty-five percent (25%) of Gibson Unit No. 5 or (ii) issue Bonds to finance the purchase thereof. If prior to September 1, 1982, the Member shall not have obtained an agreement in writing of its wholesale power supplier to cancel or assign to the Agency on or before January 1, 1983 the Member's current wholesale power supply contracts, interconnection agreements or any other wholesale power supply agreements currently in effect, this Contract shall terminate. The Member hereby agrees to cooperate with the Agency and to take all reasonable and necessary actions to obtain such agreement. SECTION 26.Survivorship of Obligations The termination of this Contract shall not discharge either party hereto from any obligation it owes to the other party under this Contract by reason of any transaction, loss, cost, damage, expense, or liability which shall occur arise (or the circumstances, events, or basis of which shall occur or arise) prior to such termination. It is the intent of the parties hereby that any such obligation owed (whether the same shall be known or unknown at the termination of this Contract or whether the circumstances, events, or basis of the same shall be known or unknown at the termination of this Contract) shall survive the termination of this Contract. SECTION 27. No Adverse Distinction The Agency agrees that there shall be no pattern of adverse distinction and no pattern of undue discrimination in carrying out its obligations under this Agreement relating to the Member as compared to other Members; provided, however, that differences in 21- treatment between Members under Schedule A and Schedule B of this Contract based upon variances in cost of service shall not be consid- ered a pattern of adverse distinction or a pattern of undue discrimi- nation for purposes of this Section. 22- IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed by their proper officers, respectively, being thereunto duly authorized, and their respective corporate seals to be hereto affixed, as of the day, month and year first above written. INDIANA MiJNICIPAL POWER AGENCY Attest: SEA~) J e:tia.i. ~'~an/ Attest: C1 erk CITX OF RICH~IOND, INDIANA 23- IMPA INDIANA MUNICIPAL POWER AGENCY September 5, 2007 Richmond Light & Power Steve Saum 2000 U.S. 27 South PO Box 908 Richmond, IN 47374 Dear Mr. Saum: I am enclosing one set of fully executed original copies of the following documents related to the amendment of your Power Sales Contract: 1) the ordinance; 2) the Amendment; 3) the certificate authenticating the local ordinance; and 4) the attorney opinion letter from your local counsel. I am also sending a copy of these documents to your local counsel for his or her reference. I appreciate your assistance in getting these documents completed in a timely fashion. Should you have any questions or need further information, please do not hesitate to contact me at 317-575-3870. Sincerely, INDIANA MUNICIPAL POWER AGENCY Kristina Kern Wheeler Vice President & Staff Counsel Enclosures cc: Local counsel KKW/skb 11610 NORTH COLLEGE AVENUE, CARMEL, INDIANA 46032 (317) 573-9955 SECOND AMENDATORY AGREEMENT TO POWER SALES CONTRACT BETWEEN INDIANA MUNICIPAL POWER AGENCY AND CITY OF RICHMOND This Agreement, made as of the i6thdayof July ,2007, by and between INDIANA MUNICIPAL POWER AGENCY (hereinafter the "Agency"), a body corporate and politic and political subdivision of the State of Indiana, organized and existing under the laws of the State of Indiana, and THE CITY OF RICHMOND hereinafter the "Member"). WITNESSETH: WHEREAS, the Agency and the Member entered into a Power Sales Contract as heretofore amended and supplemented (collectively the "Contract"), attached hereto and made a part hereof, by which the Agency agreed to sell and deliver to the Member, and the Member agreed to purchase and receive from the Agency, all electric power and energy which the Member required for the operation of its municipal electric system for a term expiring April I, 2032; and WHEREAS, the Agency is acquiring ownership of new power supply resources that will require the issuance of debt with a long-term (at least 30-years) amortization of debt service and associated costs to provide the most economic and reliable power supply to Member and other members of the Agency; and WHEREAS, it is in the best interests of the Agency and the Member to amend the Contract, as well as the Power Sales Contracts the Agency has entered into with other members of the Agency, to establish a term beginning July 16,2007 through April!, 2042 to allow the Agency to issue new debt with a long-term amortization that would extend beyond the current term of the Contract; and WHEREAS, Member is willing to amend its Contract to extend the term in the manner sought by the Agency. NOW, THEREFORE, in consideration of the premises and the covenants, terms and conditions hereinafter provided, the parties hereto mutually agree as follows: Section L reads as follows: Section 2 of the Contract is amended in its entirety and hereafter The term of this Contract shall become effective on July 16, 2007. The Contract shall remain in effect until April I ,2042. On April I , 2032, and on each April! st thereafter, the Contract term shall be extended automatically for an additional one year period (Le., on April I, 2032, the Contract term shall extend until April!, 2043). Notwithstanding the foregoing, this Contract may be terminated by the Member on April I, 2042, or on any subsequent April I" thereafter, upon the Member having given prior written notice to the Agency pursuant to Section 21 of the Contract at least ten (10) years prior to the then current date of termination. In addition, this Contract may be terminated by the Member at such time that all Bonds shall have been paid or provision for such payment shall have been made therefore pursuant to the Bond Resolution and all contractual obligations entered into by the Agency for the generation, purchase, transmission or transformation of power and energy have been terminated and provision has been made for the payment of any residual costs thereof. In no event shall the term of this Contract exceed the maximum term permitted by law. Section II. A new Section 28 is added to the Contract to read as follows: SECTION 28. Indemnification. Agency and Member shall defend and hold each other harmless from any and all claims, liability and expense, including attorneys' fees, litigation expenses and any judgment arising out of any bodily injury, death or damage to property (other than bodily injury, death or damage to property proximately caused by the other party or its servants or employees), occurring on their respective sides of the Point. of delivery, including such injury, death or damage as may be suffered by Agency or Member or by third parties, except that Agency and Member shall each be responsible for all claims of its respective employees, agents and servants under workmen's compensation laws or any similar statutes. In no event shall either Agency or Member be liable to each other for any indirect, special, incidental or consequential damages with respect to any claim arising out of this Contract whether based on contract, tort, strict liability or otherwise. Section III. Notwithstanding anything to the contrary set forth in the Contract or this Second Amendatory Agreement, the Agency may set the rates charged to the Member from time to time pursuant to the provisions of Section 5 of the Contract so as to amortize the Member's proportionate share of the debt service and associated costs incurred subsequent to the effective date of this Second Amendatory Agreement over the term of the Contract, as extended by this Second Amendatory Agreement. The modification to the Contract made by this Section II shall not be considered a pattern of adverse distinction or a pattern of undue discrimination for purposes of Section 27 of the Contract. Section IV. The Second Amendatory Agreement to this Contract shall become effective upon execution by the Chairman or Vice Chairman of the Agency's Board of Commissioners, which shall follow the execution thereof by the Member and the delivery and acceptance of opinions and certificates required pursuant to Section 19 of the Contract. Except as expressly provided for above, the terms and conditions of the Contract herein incorporated by reference remain unchanged and unmodified. IN WITNESS WHEREOF, Indiana Municipal Power Agency and the City of Richmond have caused this Second Amendatory Agreement to be executed by their respective duly authorized officers as of the day, month and year first above written. ATTE~~ Secretary Seal) I~~ Title: CJW,.-iIVVlOvn By: CITY OF RICHMOND i7<~ Mayor ATTEST' cJ'd",wg<r'--' Q"'~ III, J~. k '"y.~ ...... ", 0 .. ...,. ct: c..~ :2: E 0.5;::<1"L\.... ....~;:. y/C ....... <'\ " "1,(1".~ h'MO~v ;""... f,.f~~,",,~\\ SALLY L. HUTTON Mayor CITY OF RICHMOND DEPARTMENT OF LAW 50 NORTH FIFTH STREET - RlCHMOND, IN 47374 PHONE (765) 983-7220 - FAX (765) 983-7365 WALTER S. CHIDESTER City Attorney KENYATTA P. COX Assistant City Attorney July 16,2007 Board of Commissioners of Indiana Municipal Power Agency 11610 North College Avenue Carmel, Indiana 46032 Ice Miller, LLP One American Square, Suite 3100 Indianapolis, Indiana 46282"0200 Hackman Hullet & Cracraft, LLP 111 Monument Circle, Suite 3500 Indianapolis, Indiana 46204-2030 Re: Validity of Certain Procedures of the City of Richmond Re: Second Amendatory Agreement to the Power Sales Contract Between the City of Richmond and the Indiana Municipal Power Agency. Ladies and Gentlemen: You have requested an opinion from me as attorney for the City of Richmond, Indiana (the "Member") as to the validity of (I) the Second Amendatory Agreement to the Power Sales Contract (the "Amendment"), between the Indiana Municipal Power Agency the "Agency") and the Member, (2) the Contract Creating the Agency and Power Sales Contract, each between the Agency and the Member, as supplemented and amended to the date hereof (collectively, the "Original Contracts"), and (3) proceedings of the Member relating to the foregoing. I have examined such records, documents or laws as I have deemed relevant, appropriate or necessary for purposes of the opinion set forth herein and I am of the opinion that: I. The Member is a municipal corporation duly created and validly existing pursuant to the Constitution and statutes of the State of Indiana and its governing body as defined in Section 2(d) of IC 8-1-2.2) is the Common Council of the City of Richmond (the "Council"). 2. The Member has had and continues to have full legal right and authority to enter into the Original Contracts as supplemented and amended by the Amendment collectively, the "Contracts") and to carry out its obligatIOns thereunder. 1- 3. The Council duly approved the Amendment and its execution and delivery on behalf of the Member by ordinance duly and lawfully adopted at meetings duly called and held at which quorums were present and acting throughout; such meetings were called pursuant to necessary public notice. 4. The Contracts have been duly authorized, executed and delivered by the appropriate officers of the Member; and, assuming that the Agency has all the requisite power and authority to execute and deliver, and has duly authorized, executed and delivered the Contracts, the Contracts constitute the legal, valid and binding obligations of the Member in accordance with its terms, subject, however, to the effect of, and to restrictions and limitations imposed by or resulting from bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors' rights generally. The undersigned does not herein render an opinion as to the availability of any particular remedy. 5. To the best of my knowledge and belief, after due inquiry, and based upon the representations of my client with respect to factual matters, the execution and delivery of the Contracts by the Member, the performance by the Member of its obligations under the Contracts and the consummation of the transactions contemplated therein do not and will not contravene any existing law or any existing order, injunction, judgment, decree, rule or regulation of any court or administrative agency having jurisdiction over the Member or its property or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any existing bond ordinance, trust agreement, indenture, mortgage, deed of trust or other agreement to which the Member is a party or by which it or its property is bound. 6. All approvals, consents or authorizations of, or filings with, any governmental or public agency, authority or person required on the part of the Member in connection with the execution, delivery and performance of the Contracts have been obtained or made. 7. To the knowledge of the undersigned after due inquiry, there is no litigation or other proceeding pending or threatened in any court or other tribunal of competent jurisdiction (either state or federal) questioning the creation, organization or existence of the Member or the validity, legality or enforceability of the Contracts. Very truly yours, W/~~/~~ Walter S. Chidester WSC/mm 2- CERTIFICATE OF CITY OF RICHMOND, INDIANA We, Sally L. Hutton and Karen Chasteen, the Mayor and City Clerk, respectively, of the City of Richmond, Indiana (the "Member") are the duly elected or appointed, qualified, acting and authorized officers of the Member and are empowered to make the certifications and representations included herein. Therefore, we hereby certify and represent that: 1. The Member is a municipal corporation duly created and validly existing pursuant to the Constitution and statutes of the State of Indiana and its governing body as defined in Section 2(d) of IC 8-1-2.2) is the Common Council of the City of Richmond (the "Council"). 2. The Member, under its full legal right and authority, entered into the Contract Creating the Agency and the Power Sales Contract, each between the Indiana Municipal Power Agency ("Agency") and the Member, as supplemented and amended to the date hereof (collectively, the "Original Contracts"), and has carried out its obligations thereunder. 3. The Member has full legal right and authority to enter into the Second Amendatory Agreement to the Power Sales Contract between the Agency and the Member (the "Amendment"), and to carry out its obligations thereunder. 4. The Council duly and lawfully adopted and approved the Amendment and the Original Contracts and authorized the execution and delivery of the Amendment and the Original Contracts on behalf of the Member at meetings duly called and held at which quorums were present and acting throughout; such meetings were called pursuant to necessary public notice. 5. The Amendment has been duly authorized, executed and delivered by the appropriate officers of the Member; and, assuming that the Agency has all the requisite power and authority to execute and deliver, and has duly authorized, executed and delivered the Original Contracts as supplemented and amended by the Amendment collectively, the "Contracts"), the Contracts constitute the legal, valid and binding obligations of the Member, enforceable in accordance with their terms, subject, however, to the effect of, and to restrictions and limitations imposed by or resulting from bankmptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors' rights generally. We do not herein render an opinion as to the availability of any particular remedy. 6. The execution and delivery of the Contracts by the Member, the performance by the Member of its obligations under the Contracts and the consummation of the transactions contemplated therein do not and will not contravene any existing law or any existing order, injunction, judgment, decree, rule or regulation of any court or administrative agency having jurisdiction over the Member or its property or result in a breach or violation of any of the terms and provisions of, or constitute a default under, J any existing bond ordinance, trust agreement, indenture, mortgage, deed of trust or other agreement to which the Member is a party or by which it or its property is bound. 7. All approvals, consents or authorizations of, or filings with, any governmental or public agency, authority or person required on the part of the Member in connection with the execution, delivery and performance of the Contracts have been obtained or made. 8. To the knowledge of the undersigned after due inquiry, there is no litigation or other proceedings pending or threatened in any court or other tribunal of competent jurisdiction (either state or federal) questioning the creation, organization or existence of the Member or the validity, legality or enforceability of the Contracts. IN WITNESS WHEREOF, we have signed our n corporate seal of the City of Richmond, Indiana this~ day 0 tI.~ Mayor City of Richmond, Indiana Ar~E~: d/AH'~ City Clerk u""" III"", a" 0.. ~~: 0 :z: C-.'~.) : <( :7 .~... Q,: 9IC':;M'''O'~O' "" I" 17 \,'\ I",..,,,,,' CITY ORDINANCE NO.53-2007 An Ordinance of the City of Richmond, authorizing the execution and delivery of the Second Amendatory Agreement to the Power Sales Contract between Indiana Municipal Power Agency and the City of Richmond, and other matters connected therewith. WHEREAS, the City of Richmond (the "Member") is a municipality owmng and operating on January I, 1980, an electric utility which furnished electric service to the public and purchased electric power from public utilities; and WHEREAS, the Member is required by law to provide its customers with an adequate, reliable and economic supply of electric power and energy, but has determined that individually it is not financially capable of providing the planning, financing, locating and building of needed new facilities for generation and transmission to satisfy future requirements of its customers; and WHEREAS, based upon its obligations to serve its customers, and the above considerations, the Member determined that it was in its best interest to Jom with other municipalities in the State of Indiana as a member of the Indiana Municipal Power Agency (the Agency") for the purpose of undertaking the planning, financing, ownership and operation of a project or projects to supply electric power and energy for its needs; and WHEREAS, the Agency and the Member entered into, and have carried out their respective obligations under, the Contract Creating the Agency and Power Sales Contract, as heretofore amended and supplemented (collectively, the "Original Contracts"), each between the Member and the Agency, attached hereto and made a paJ1 hereof; and WHEREAS, under the Power Sales Contract the Agency agreed to sell and deliver to the Member, and the Member agreed to purchase and receive from the Agency, all electric power and energy which the Member required for the operation of its municipal electric system for a term expiring April], 2032; and 1- WHEREAS, the Agency is acquiring ownership of new power supply resources that will require the issuance of debt with a long-term (at least 30 years) amortization of debt service and associated costs to provide the most economic and reliable power supply to the Member and other members of the Agency; and WHEREAS, it is in the best interests of the Agency and the Member to enter into the Second Amendatory Agreement to the Power Sales Contract between the Agency and the Member (the "Amendment"), to establish a term beginnin~, 2007 through April!, 2042 to allow the Agency to issue new debt with a long-term amortization that would extend beyond the current term of the Power Sales Contract; and WHEREAS, the Original Contracts and the Amendment, marked as Exhibit A, are attached hereto, incorporated herein by reference and two (2) copies of each are on file in the office of the City Clerk for public inspection pursuant to lC 36-1-5-4; and WHEREAS, Member desires to amend the Power Sales Contract to extend the term in the mmmer described above. WHEREAS, representatives of the Member have reviewed the Original Contracts and the Amendment and have obtained independent advice and counsel with respect thereto where appropriate and the Member has had the opportunity to review the Original Contracts and the Amendment with the Agency; and WHEREAS, based upon the foregoing facts, the Member by this Ordinance hereby finds and determines to ratify the Original Contracts and approve the Amendment. NOW THEREFORE BE IT ORDAINED BY THE COMMON COUNCIL OF THE MEMBER: 2- Section 1. The findings and determinations set forth in the preambles to this Ordinance are hereby made findings and determinations of the Member. Section 2. By this Ordinance, the entry of the Member into the Original Contracts and its performance of the terms and conditions thereof are hereby ratified and confirmed. The Member is authorized pursuant to this Ordinance (a) to enter into the Amendment in substantially the form attached hereto as Exhibit A, and (b) to be bound by the terms and conditions of the Original Contracts as supplemented and amended by the Amendment, as further supplemented from time to time, the By-Laws of the Agency and such other lawful actions as may be heretofore have been taken by the Board of Commissioners of the Agency. Section 3. By this Ordinance, the Mayor of the City of RicIunond is hereby authorized and directed to execute and deliver, and the City Clerk is hereby authorized to attest and seal, the Amendment. Section 6. All ordinances and parts of ordinances in conflict herewith are hereby repealed. Section 7. This Ordinance shall be in full force and effect from and after its passage. PASSED AND ADOPTED by the Common Council of the City of Richmond, Indiana, this /D day of 9~ ,2007. CITY OF RICHMOND, INDIANA By ouncil ATTEST: 4./ d ~.z:-" ~ ~ AL) ~\ % u '4:- y : 2:: E 0. .00 {:;) :: 9/;,"........... ~~;> 9"fJ';:'J.fMON? ..'-".......,.~ n ~ r. ".~. ,~a' 3- t- Presented by me, the undersigned City Clerk of the City of Richmond, to the Mayor of the City of Richmond for hislher approval on this /7 day of cr ~ ' at M_ k< City Clerk 7 _ _ _) 00 by the undersigned Mayor of the City of Richmond, this 7 day of J--o tJ.7 LA Yf~ Mayor, City of Richmond 4- THIRD AMENDATORY AGREEMENT TO POWER SALES CONTRACT BETWEEN INDIANA MUNICIPAL POWER AGENCY AND CITY OF RICHMOND This Third Amendatory Agreement (the “Agreement”), made as of the _____ day of ________________, 2021, by and between INDIANA MUNICIPAL POWER AGENCY (hereinafter the “Agency”), a body corporate and politic and political subdivision of the State of Indiana, organized and existing under the laws of the State of Indiana, and the CITY OF RICHMOND (hereinafter the “Member”). WITNESSETH: WHEREAS, the Agency and the Member entered into a Power Sales Contract as heretofore amended and supplemented (collectively the “Contract”), attached hereto and made a part hereof, by which the Agency agrees to sell and deliver to the Member, and the Member agrees to purchase and receive from the Agency, all electric power and energy which the Member requires for the operation of its municipal electric system for a term expiring April 1, 2042; and WHEREAS, the Agency plans for its power supply on a thirty-year timeline and the power supply resources considered can take five to ten years or more for development and construction, with useful lives of decades longer; and WHEREAS, changing public opinions and government regulations relating to climate change and carbon dioxide emissions require that the Agency be able to adjust its power supply portfolio as the need arises; and WHEREAS, major new power supply resources would require the issuance of debt with a long-term (at least thirty years) amortization of debt service and associated costs to provide the most economic and reliable power supply to Member and other members of the Agency; and WHEREAS, it is in the best interests of the Agency and the Member to amend the Contract, as well as the Power Sales Contracts the Agency has entered into with other members of the Agency, to extend the existing term through April 1, 2050 with a thirty- year notice of termination that would allow the Agency the discretion to issue new debt with a long-term amortization if necessary; and WHEREAS, Member is willing to amend its Contract in the manner sought by the Agency. NOW, THEREFORE, in consideration of the premises and the covenants, terms and conditions hereinafter provided, the parties hereto mutually agree as follows: Section I. The first paragraph of Section 2 of the Contract is deleted and replaced with the following: The term of this Contract shall become effective on April 1, 1982. The Contract shall remain in effect until April 1, 2050. On April 1, 2020, and on each April 1st thereafter, the Contract term shall be extended automatically for an additional one year period (i.e., on April 1, 2020, the Contract term shall extend until April 1, 2051). Notwithstanding the foregoing, this Contract may be terminated by the Member on April 1, 2050, or on any subsequent April 1st thereafter, upon the Member having given prior written notice to the Agency pursuant to Section 21 of the Contract at least thirty (30) years prior to the then current date of termination. In addition, this Contract may be terminated by the Member at such time that all Bonds shall have been paid or provision for such payment shall have been made therefore pursuant to the Bond Resolution and all contractual obligations entered into by the Agency for the generation, purchase, transmission or transformation of power and energy have been terminated and provision has been made for the payment of any residual costs thereof. Section II. The Agreement shall become effective upon execution by the Agency’s President or Chairman or Vice Chairman of the Agency’s Board of Commissioners, which shall follow the execution thereof by the Member and the delivery and acceptance of opinions and certificates required pursuant to Section 19 of the Contract. Except as expressly provided for above, the terms and conditions of the Contract herein incorporated by reference remain unchanged and unmodified. [Signatures on following page.] IN WITNESS WHEREOF, Indiana Municipal Power Agency and the City of Richmond have caused this Agreement to be executed by their respective duly authorized officers as of the day, month and year first above written. INDIANA MUNICIPAL POWER AGENCY By:_______________________________________ ATTEST: _____________________________ IMPA Secretary (Seal) CITY OF RICHMOND By:_______________________________________ Mayor ATTEST: ____________________________ Clerk-Treasurer (Seal)