<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
Issuer of Senior Notes registered hereby
ALLIANT ENERGY RESOURCES, INC.
(Exact name of registrant as specified in its charter)
------------------------
<TABLE>
<S> <C> <C>
WISCONSIN 6719 39-1605561
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation) Classification Code Number) No.)
</TABLE>
ALLIANT TOWER
200 FIRST STREET SE
CEDAR RAPIDS, IOWA 52401
(319) 398-4411
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Guarantor of Senior Notes registered hereby
ALLIANT ENERGY CORPORATION
(Exact name of registration as specified in its charter)
<TABLE>
<S> <C> <C>
WISCONSIN 6719 39-1380265
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation) Classification Code Number) No.)
</TABLE>
222 WEST WASHINGTON AVENUE
MADISON, WISCONSIN 53703
(608) 252-3311
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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EDWARD M. GLEASON Copies to:
VICE PRESIDENT-TREASURER AND CORPORATE SECRETARY BENJAMIN F. GARMER, III, ESQ.
ALLIANT ENERGY RESOURCES, INC. FOLEY & LARDNER
ALLIANT ENERGY CORPORATION 777 EAST WISCONSIN AVENUE
222 WEST WASHINGTON AVENUE MILWAUKEE, WISCONSIN 53202
MADISON, WISCONSIN 53703 (414) 271-2400
(608) 252-3311
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: Upon
consummation of the Exchange Offer referred to herein.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
7 3/8% New Senior Notes due 2009(2).... $250,000,000 100% $250,000,000 $66,000
- -------------------------------------------------------------------------------------------------------------------------
Guarantees for the New Senior Notes due
2009(3).............................. -- -- -- --
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</TABLE>
(1) Estimated solely for purposes of determining the registration fee.
(2) Calculated pursuant to Rule 457(f) under the Securities Act of 1933.
(3) Pursuant to Rule 457(n) under the Securities Act of 1933, no registration
fee is required with respect to the guarantees.
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 16, 1999
[ALLIANT ENERGY RESOURCES, INC. LOGO]
ALLIANT ENERGY RESOURCES, INC.
OFFER TO EXCHANGE
ALL OUTSTANDING
7 3/8% SENIOR NOTES DUE 2009
($250,000,000 PRINCIPAL AMOUNT OUTSTANDING)
FOR
NEW 7 3/8% SENIOR NOTES DUE 2009
($250,000,000 PRINCIPAL AMOUNT)
----------------------
- - We are offering to exchange new registered 7 3/8% Senior Notes due 2009 for
all of our outstanding unregistered 7 3/8% Senior Notes due 2009.
- - The exchange offer expires at 5:00 p.m., New York City time, on
, 2000, unless we extend it.
- - The terms of the new senior notes are substantially identical to those of the
existing senior notes, except that the new senior notes will not have
securities law transfer restrictions and registration rights relating to the
existing senior notes and the new senior notes will not provide for the
payment of additional interest under circumstances relating to the timing of
the exchange offer.
- - The exchange offer is not subject to any condition other than that the
exchange offer not violate applicable law or applicable interpretation of the
staff of the SEC and certain other conditions.
- - All outstanding senior notes that are validly tendered and not validly
withdrawn will be exchanged.
- - You may withdraw your tender of existing senior notes any time before the
exchange offer expires.
- - We will not receive any proceeds from the exchange offer.
- - The exchange of senior notes will not be a taxable event for U.S. federal
income tax purposes.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
----------------------
The date of this prospectus is , 1999.
<PAGE> 3
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information......................... 3
Forward-Looking Statements.................................. 4
Prospectus Summary.......................................... 5
Use of Proceeds............................................. 13
Capitalization.............................................. 13
Business.................................................... 14
Management.................................................. 17
Description of Outstanding Indebtedness..................... 20
The Exchange Offer.......................................... 21
Description of the New Senior Notes......................... 29
United States Federal Income Tax Considerations............. 43
Plan of Distribution........................................ 45
Legal Matters............................................... 46
Experts..................................................... 46
</TABLE>
----------------------
WHERE YOU CAN FIND MORE INFORMATION
Alliant Energy Corporation, our parent corporation and the guarantor of the
senior notes, files annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document which Alliant
Energy Corporation files at the SEC's public reference rooms at 450 Fifth
Street, N.W., Washington D.C., and at regional SEC offices in Chicago, Illinois
and New York, New York. You can call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference rooms. You can also find
Alliant Energy Corporation's public filings with the SEC on the internet at a
website maintained by the SEC located at http://www.sec.gov.
We are "incorporating by reference" specified documents that Alliant Energy
Corporation files with the SEC, which contain important business and financial
information not included in or delivered with this prospectus. "Incorporating by
reference" means:
- incorporated documents are considered part of this prospectus;
- we are disclosing important information to you by referring you to those
documents; and
- information Alliant Energy Corporation files with the SEC will
automatically update and supersede information contained in this
offering memorandum.
We incorporate by reference the documents we list below and any future
filings Alliant Energy Corporation makes with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus and before the end of the exchange offer:
- Alliant Energy Corporation's Annual Report on Form 10-K for the year
ended December 31, 1998, as amended by Alliant Energy Corporation's Form
10-K/A filed November 1, 1999;
- Alliant Energy Corporation's Reports on Form 10-Q for the quarters ended
March 31, 1999 and June 30, 1999, each as amended by Alliant Energy
Corporation's Form 10-Q/As filed on November 1, 1999, and Alliant Energy
Corporation's Report on Form 10-Q for the quarter ended September 30,
1999; and
- Alliant Energy Corporation's Current Reports on Form 8-K, both dated
January 20, 1999.
YOU MAY REQUEST A COPY OF ANY OF THESE FILINGS (INCLUDING EXHIBITS), AT NO
COST, BY WRITING TO EDWARD M. GLEASON, VICE PRESIDENT-TREASURER AND CORPORATE
SECRETARY, ALLIANT ENERGY CORPORATION, 222 WEST WASHINGTON AVENUE, MADISON,
WISCONSIN 53703, OR BY CALLING MR. GLEASON AT (608) 252-3311. TO OBTAIN
3
<PAGE> 5
TIMELY DELIVERY OF ANY OF THIS INFORMATION, YOU MUST MAKE YOUR REQUEST AT LEAST
FIVE BUSINESS DAYS PRIOR TO THE EXPIRATION OF THE EXCHANGE OFFER. THE DATE BY
WHICH YOU MUST MAKE YOUR REQUEST IS , 2000.
You should rely only on the information contained or incorporated by
reference in this document or to which we have referred you. We have not
authorized any other person to provide you with different information. This
prospectus may only be used where it is legal to sell these securities. You
should assume that the information contained or incorporated by reference in
this document is accurate as of the date on the front cover of the prospectus
only. Our and Alliant Energy Corporation's business, financial condition,
results of operations and prospects may have changed since that date.
FORWARD-LOOKING STATEMENTS
This prospectus (including the information we incorporate by reference)
contains forward-looking statements that are not of historical fact and are
statements intended to qualify for the safe harbors from liability established
by the Private Securities Litigation Reform Act of 1995. From time to time, we
or Alliant Energy Corporation may make other forward-looking statements within
the meaning of the federal securities laws that involve judgments, assumptions
and other uncertainties beyond our control. These forward-looking statements may
include, among others, statements concerning revenue and cost trends, cost
recovery, cost reduction strategies and anticipated outcomes, pricing
strategies, changes in the utility industry, planned capital expenditures,
financing needs and availability, statements of expectations, beliefs, future
plans and strategies, anticipated events or trends and similar comments
concerning matters that are not historical facts. You are cautioned that these
statements are not a guarantee of future performance and that these
forward-looking statements are subject to risks and uncertainties that could
cause actual results to differ materially from those expressed in, or implied
by, these statements. Some, but not all, of the risks and uncertainties include:
- weather effects on sales and revenues,
- competitive factors,
- general economic conditions in the relevant service territory,
- federal and state regulatory or government actions, including the
deregulation of the utility industry,
- unanticipated construction and acquisition expenditures,
- issues related to stranded costs and their recovery,
- the operations of Alliant Energy Corporation's nuclear facilities,
- unanticipated issues or costs associated with achieving Year 2000
compliance,
- unanticipated costs associated with certain environmental remediation
efforts being undertaken by Alliant Energy Corporation,
- material changes in the value of our investment in McLeodUSA
Incorporated,
- technological developments,
- employee workforce factors, including changes in key executives,
collective bargaining agreements or work stoppages,
- political, legal and economic conditions in foreign countries Alliant
Energy Corporation has investments in, and
- changes in the rate of inflation.
----------------------
In this prospectus, "we," "us" and "our" refer to Alliant Energy Resources,
Inc.
4
<PAGE> 6
PROSPECTUS SUMMARY
The following summary highlights selected information from this prospectus
and may not contain all of the information that is important to you. This
prospectus includes the specific terms of the new senior notes we are offering,
as well as information regarding our business. We encourage you to read this
prospectus in its entirety.
ALLIANT ENERGY RESOURCES, INC.
OVERVIEW
We are a wholly-owned subsidiary of Alliant Energy Corporation, which is a
registered public utility holding company. We manage a portfolio of companies
involved in non-regulated businesses. These businesses include providing energy
and environmental services, energy generation and infrastructure in growing
domestic and international markets, products and services to meet the needs of
residential and small commercial customers, electricity marketing and risk
management services to wholesale customers, transportation services, and
financing for affordable housing developments. Our primary subsidiaries include
Alliant Energy Investments, Inc.; Alliant Energy International, Inc.; and
Alliant Energy Industrial Services, Inc. Alliant Energy Corporation also has a
50% ownership interest in a joint venture with Cargill Incorporated, named
Cargill-Alliant LLC.
Set forth below is a condensed organization chart that reflects how our and
Alliant Energy Corporation's businesses and investments are managed:
[FLOW CHART]
Our principal executive offices are located at Alliant Tower, 200 First
Street SE, Cedar Rapids, Iowa 52401, telephone number (319) 398-4411.
STRATEGY
As competitive forces shape the energy-services industry, energy providers
are being challenged to increase growth and profits. Because we expect
consumption of electricity and natural gas to grow only modestly within Alliant
Energy Corporation's domestic utility service territory, we have entered several
energy-services markets that we expect will provide opportunities for new
sources of growth. We have
5
<PAGE> 7
established new distinct platforms to complement our existing non-regulated
investments, which are designed to meet customer needs. These platforms and
existing investments include:
- Investments: Our existing investments include an oil and gas production
company, a short-line railroad, a barge company, an affordable housing
company, various real estate joint ventures and an equity stake in an
independent telecommunications provider.
- International: We are a partner in developing, or are seeking to develop,
energy generation and infrastructure in New Zealand, Australia, China,
Mexico and Brazil, markets which we have selected because of their growth
potential.
- Industrial Services: We are a provider of energy and environmental
services designed to maximize productivity for industrial and large
commercial customers.
- Cargill-Alliant: Alliant Energy Corporation has an energy-trading joint
venture with Cargill Incorporated, one of the world's largest and most
established commodity trading firms, that combines the risk-management
and commodity trading expertise of Cargill with Alliant Energy
Corporation's low-cost electricity generation and transmission business
experience.
- Mass Markets: We are a provider of a growing array of products and
services designed to meet the comfort, security and productivity needs of
residential and small commercial customers.
ALLIANT ENERGY CORPORATION
Alliant Energy Corporation was formed as a result of a three-way merger
involving WPL Holdings, Inc., IES Industries Inc. and Interstate Power Company.
The merger was completed in April 1998. The first tier subsidiaries of Alliant
Energy Corporation include Wisconsin Power and Light Company, IES Utilities
Inc., Interstate Power Company, Alliant Energy Resources, Inc. and Alliant
Energy Corporate Services, Inc.
Alliant Energy Corporation, through its public utility operating companies,
Wisconsin Power and Light Company, IES Utilities Inc. and Interstate Power
Company, is engaged principally in:
- the generation, transmission, distribution and sale of electric energy;
- the purchase, distribution, transportation and sale of natural gas; and
- the provision of water and steam services in selected markets.
The principal markets of Alliant Energy Corporation's utility operating
subsidiaries are located in Iowa, Wisconsin, Minnesota and Illinois. Alliant
Energy Corporation is also involved in several non-regulated and non-utility
activities through our company.
Alliant Energy Corporation, a public utility holding company incorporated
in Wisconsin in 1981, has its principal executive offices located at 222 West
Washington Avenue, Madison, Wisconsin 53703, telephone number (608) 252-3311.
THE EXCHANGE OFFER
Existing Senior Notes...... We sold $250,000,000 of our 7 3/8% Senior Notes due
2009, which are unconditionally guaranteed by
Alliant Energy Corporation, to the initial
purchasers on November 9, 1999. The initial
purchasers resold those senior notes (the "existing
senior notes") to qualified institutional buyers
pursuant to Rule 144A under the Securities Act of
1933.
Registration Rights
Agreement.................. When we sold the existing senior notes we entered
into a registration rights agreement with the
initial purchasers in which we agreed, among other
things, to provide to you and all other holders of
these existing senior notes the opportunity to
exchange your unregistered
6
<PAGE> 8
existing senior notes for a new series of
substantially identical new senior notes that we
have registered under the Securities Act. This
exchange offer is being made for that purpose.
New Senior Notes........... We are offering registered 7 3/8% Senior Notes due
2009, which are unconditionally guaranteed by
Alliant Energy Corporation (the "new senior
notes"), in exchange for your existing senior
notes. The terms of the new senior notes and the
existing senior notes are substantially identical
except:
- the new senior notes will be issued in a
transaction that will have been registered under
the Securities Act;
- the new senior notes will not contain securities
law restrictions on transfer; and
- the new senior notes will not provide for the
payment of additional interest under
circumstances relating to the timing of the
exchange offer.
The Exchange Offer......... We are offering to exchange $1,000 principal amount
of the new senior notes for each $1,000 principal
amount of your existing senior notes. As of the
date of this prospectus, $250,000,000 aggregate
principal amount of the existing senior notes are
outstanding. For procedures for tendering, see "The
Exchange Offer -- Procedures for Tendering Existing
Senior Notes"
Expiration Date............ This exchange offer will expire at 5:00 p.m., New
York City time, on , 2000, unless we
extend it.
Resales of New Senior
Notes...................... We believe that you may resell or otherwise
transfer the new senior notes received in the
exchange offer without complying with the
registration and prospectus delivery provisions of
the Securities Act so long as you are not a
broker-dealer and you meet the following
conditions:
- you are not our "affiliate" within the meaning
of Rule 405 under the Securities Act;
- you acquire the new senior notes issued in the
exchange offer in the ordinary course of your
business; and
- you have no arrangement or understanding with
any person to participate in the distribution of
the new senior notes.
By signing the letter of transmittal and tendering
your existing senior notes, you will be making
representations to this effect. You may incur
liability under the Securities Act if:
- any of the representations listed above are not
true; and
- you transfer any new senior note issued to you
in the exchange offer without either delivering
a prospectus meeting the requirements of the
Securities Act or qualifying for an exemption
from the registration requirements under the
Securities Act.
We do not assume or indemnify you against liability
under these circumstances, which means that we will
not protect you against any loss incurred as a
result of this liability under the Securities Act.
7
<PAGE> 9
Each broker-dealer that has received new senior
notes for its own account in exchange for existing
senior notes that were acquired as a result of
market-making or other trading activities must
acknowledge that it will deliver a prospectus
meeting the requirements of the Securities Act in
connection with any resale of the new senior notes.
A broker-dealer generally may use this prospectus
in connection with any such resale. See "The
Exchange Offer -- Resales of New Senior Notes."
Acceptance of Existing
Senior Notes and Delivery
of New Senior Notes...... We will accept for exchange any and all existing
senior notes that are validly tendered in the
exchange offer and not withdrawn before the offer
expires. The new senior notes will be delivered
promptly following the exchange offer.
Withdrawal Rights.......... You may withdraw your tender of existing senior
notes at any time before the exchange offer
expires.
Conditions of the Exchange
Offer...................... The exchange offer is subject to certain
conditions, which we may waive.
Consequences of Failure to
Exchange................. If you are eligible to participate in the exchange
offer and you do not tender your existing senior
notes, then you will not have further exchange or
registration rights and you will continue to hold
existing senior notes subject to restrictions on
transfer.
Federal Income Tax
Consequences............. The exchange of an existing senior note for a new
senior note will not be taxable to a United States
holder for federal income tax purposes.
Consequently, you will not recognize any gain or
loss upon receipt of the new senior notes. See
"United States Federal Income Tax Consequences."
Use of Proceeds............ We will not receive any proceeds from the exchange
offer.
Accounting Treatment....... We will not recognize any gain or loss on the
exchange of senior notes. See "The Exchange
Offer -- Accounting Treatment."
Exchange Agent............. Firstar Bank, N.A. is the exchange agent. See "The
Exchange Offer -- Exchange Agent."
THE NEW SENIOR NOTES
The new senior notes will evidence the same debt as the existing senior
notes and will be governed by the same indenture, as supplemented, under which
the existing senior notes were issued.
TERMS OF THE NEW SENIOR NOTES
Aggregate Principal
Amount..................... Up to $250,000,000.
Interest Rate.............. 7 3/8% per year.
Maturity Date.............. November 9, 2009.
Interest Payment Dates..... May 9 and November 9 of each year, beginning May 9,
2000.
8
<PAGE> 10
Interest Calculations...... Based on a 360-day year of twelve 30-day months.
Parent Company Guarantee... Our parent, Alliant Energy Corporation, will
unconditionally guarantee the new senior notes. The
guarantee will be equal in right of payment with
all other unsecured indebtedness and guarantees
issued by our parent.
Ranking.................... The new senior notes will rank equally with all of
our other unsecured and unsubordinated
indebtedness.
Optional Redemption........ The new senior notes will be redeemable in whole or
in part at our option at any time, on at least 30
days' but not more than 60 days' prior written
notice at a price equal to the greater of (a) 100%
of the principal amount of the new senior notes
being redeemed and (b) the sum of the present
values of the principal amount of the new senior
notes to be redeemed and the remaining scheduled
payments of interest on the new senior notes from
the redemption date to November 9, 2009, discounted
from their respective scheduled payment dates to
the redemption date semi-annually (assuming a
360-day year consisting of twelve 30-day months) at
a discount rate equal to the Treasury Yield (as
defined under "Description of the New Senior
Notes -- Optional Redemption") plus 20 basis
points, plus accrued interest on the senior notes
to the redemption date. See "Description of the New
Senior Notes -- Optional Redemption."
Sinking Fund............... None.
Form and Denominations..... The new senior notes initially will be issued in
fully registered book-entry form and will be
represented by one or more registered global
securities deposited with or on behalf of, and
registered in the name of, a nominee of The
Depository Trust Company. The new senior notes will
be issued in denominations of $1,000 and integral
multiples thereof.
Absence of Market for the
Notes...................... The new senior notes are a new issue of securities
with no established trading market. We currently
have no intention to apply to list the new senior
notes on any securities exchange or to seek their
admission to trading on any automated quotation
system. Accordingly, there can be no assurance as
to the development or liquidity of any market for
the new senior notes.
GENERAL INDENTURE PROVISIONS APPLICABLE TO THE NEW SENIOR NOTES
No Limit on Debt........... The indenture governing the new senior notes does
not limit the amount of debt that we may issue or
provide holders any protection should we be
involved in a highly leveraged transaction.
Certain Covenants.......... The indenture contains covenants that, among other
things, will limit our ability and that of our
subsidiaries and, for some limited matters, Alliant
Energy Corporation to:
- issue, assume or guarantee certain additional
secured indebtedness;
- engage in sale and lease-back transactions; and
- consolidate or merge.
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<PAGE> 11
These covenants are subject to important exceptions
and qualifications, which are described under the
heading "Description of the New Senior
Notes -- Covenants" in this prospectus.
Events of Default.......... Each of the following is an event of default under
the indenture:
- the failure by us or Alliant Energy Corporation
to pay principal of or premium, if any, on the
senior notes when due;
- the failure by us or Alliant Energy Corporation
for 30 days to pay interest when due on the
senior notes;
- the failure by us or Alliant Energy Corporation
to perform other covenants with respect to the
senior notes following 90 days after receipt of
notice of failure; and
- certain events of bankruptcy, insolvency or
reorganization of us or Alliant Energy
Corporation.
These covenants are subject to important exceptions
and qualifications, which are described under the
heading "Description of the New Senior
Notes -- Events of Default" in this prospectus.
Remedies................... If any event of default occurs and is continuing,
the trustee under the indenture or holders of at
least 25% in aggregate principal amount of
outstanding senior notes may declare the principal
thereof immediately due and payable.
Other...................... The new senior notes and the existing senior notes
will vote together as a single class for purposes
of determining whether the holders of the requisite
percentage in outstanding principal amount have
taken certain actions or exercised certain rights
under the indenture.
10
<PAGE> 12
SUMMARY FINANCIAL INFORMATION
ALLIANT ENERGY RESOURCES, INC.
The following table sets forth our unaudited summary consolidated financial
information. The information set forth below was derived from Alliant Energy
Corporation's financial statements and notes. The unaudited interim period
financial information, in our opinion, includes all adjustments, which are
normal and recurring in nature, necessary for a fair presentation for the
periods shown. Results for the nine months ended September 30, 1999 are not
necessarily indicative of results to be expected for the full fiscal year.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
-------------------- --------------------------------
1999 1998 1998 1997 1996
-------- -------- -------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Operating revenues........................ $202,863 $177,269 $238,676 $361,961 $393,963
Operating income (loss)................... 296 (5,533) (8,608) (6,818) (6,666)
Income (loss) from continuing operations
before discontinued operations.......... 27,013(1) (8,142) (8,898) (3,966) (1,851)
Net income (loss)......................... 27,013(1) (8,142) (8,898) (3,966) (3,148)
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
---------------------- --------------------
1999 1998 1998 1997
---------- -------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
BALANCE SHEET DATA:
Current assets..................................... $ 104,745 $ 87,994 $ 92,148 $ 92,703
Non-current assets(2).............................. 1,381,858 662,116 777,113 745,801
Current liabilities................................ 52,605 53,402 63,648 101,399
Non-current liabilities (excludes minority
interest)........................................ 370,508 108,372 160,278 153,872
Minority interest(3)............................... 7,138 6,633 6,193 5,446
</TABLE>
- ---------------
(1) Includes after-tax gains of $21 million from the sale of a portion of our
investment in McLeodUSA Incorporated.
(2) Includes the market value of McLeodUSA Incorporated of $818 million at
September 30, 1999, $223 million at September 30, 1998, $320 million at
December 31, 1998 and $328 million at December 31, 1997.
(3) Minority interest represents primarily real estate joint ventures.
11
<PAGE> 13
ALLIANT ENERGY CORPORATION
The following table sets forth selected consolidated financial information
of Alliant Energy Corporation. The information set forth below was selected or
derived from the financial statements and notes of Alliant Energy Corporation.
The unaudited interim period financial information, in the opinion of Alliant
Energy Corporation, includes all adjustments, which are normal and recurring in
nature, necessary for a fair presentation for the periods shown. Results for the
nine months ended September 30, 1999 are not necessarily indicative of results
to be expected for the full fiscal year. The information set forth below is
qualified in its entirety by and should be read in conjunction with the Alliant
Energy Corporation Management's Discussion and Analysis of Financial Condition
and Results of Operations and the detailed information and consolidated
financial statements, including the notes thereto, incorporated by reference in
this prospectus. See "Where You Can Find More Information."
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
----------------------- --------------------------------------------------------------
1999 1998 1998(1) 1997 1996 1995 1994
---------- ---------- ---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS EXCEPT FOR PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Operating revenues.... $1,631,305 $1,602,608 $2,130,874 $2,300,627 $2,232,840 $1,976,807 $1,889,231
Operating income...... 284,046 228,704 283,302 336,383 365,439 364,932 313,508
Income from continuing
operations.......... 151,784 71,481 96,675 144,578 157,088 159,157 147,064
Net income............ 151,784 71,481 96,675 144,578 155,791 145,971 145,890
PER SHARE DATA:
Income from continuing
operations.......... $1.94 $0.93 $1.26 $1.90 $2.08 $2.13 $1.99
Earnings per average
common share (basic
and diluted)........ $1.94 $0.93 $1.26 $1.90 $2.06 $1.95 $1.98
Dividends declared per
common share(2)..... $1.50 $1.50 $2.00 $2.00 $1.97 $1.94 $1.92
BALANCE SHEET DATA:
Total assets.......... $5,597,245 $4,710,128 $4,959,337 $4,923,550 $4,639,826 $4,476,406 $4,269,637
Long-term obligations,
net................. $1,744,687 $1,664,665 $1,713,649 $1,604,305 $1,444,355 $1,357,755 $1,358,258
RATIO OF EARNINGS TO
FIXED CHARGES....... 3.34 2.28 2.17 2.77 3.21 3.17 3.17
</TABLE>
- ---------------
(1) The 1998 financial results reflect the recording of $54 million of pre-tax
merger charges.
(2) Represents data for WPL Holdings, Inc. prior to the three-way merger
involving WPL Holdings, Inc., IES Industries Inc. and Interstate Power
Company in April 1998.
12
<PAGE> 14
USE OF PROCEEDS
This exchange offer is intended to satisfy our obligations under the
registration rights agreement entered into in connection with the issuance of
the existing senior notes. We will not receive any cash proceeds from the
issuance of the new senior notes.
The net proceeds from the sale of the existing senior notes were
approximately $247 million. We added the net proceeds from the sale of the
existing senior notes to our general funds. We expect to use our general funds
to repay commercial paper we issued in connection with the development and
acquisition of non-regulated businesses as it becomes due. To the extent we do
not use the net proceeds for repayment of commercial paper, we may also use the
net proceeds to fund our existing operations, including potential acquisitions.
We invested general funds not immediately used for these purposes or other
purposes in short-term instruments. At September 30, 1999, we had $329.5 million
of commercial paper outstanding and backed by our 3-Year Credit Agreement, with
a weighted-average maturity of 24.3 days and a weighted-average interest rate of
5.54%.
CAPITALIZATION
The following table sets forth the consolidated capitalization of Alliant
Energy Corporation (including us) as of September 30, 1999, and as adjusted to
give effect to the sale of the existing senior notes.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999
------------------------
ACTUAL ADJUSTED
---------- ----------
(IN THOUSANDS)
<S> <C> <C>
Common stock................................................ $ 787 $ 787
Additional paid-in capital.................................. 934,373 934,373
Retained earnings........................................... 572,035 572,035
Accumulated other comprehensive income...................... 475,625 475,625
---------- ----------
Total common equity....................................... 1,982,820 1,982,820
---------- ----------
Cumulative preferred stock of subsidiaries.................. 113,604 113,604
Long-term debt (excluding current portion).................. 1,569,531 1,819,531
---------- ----------
Total capitalization...................................... $3,665,955 $3,915,955
========== ==========
</TABLE>
13
<PAGE> 15
BUSINESS
OVERVIEW
We are a wholly-owned subsidiary of Alliant Energy Corporation, which is a
registered public utility holding company. We manage a portfolio of companies
involved in non-regulated businesses. These businesses include providing energy
and environmental services, energy generation and infrastructure in growing
domestic and international markets, products and services to meet the needs of
residential and small commercial customers, electricity marketing and risk
management services to wholesale customers, transportation services, and
financing for affordable housing developments. Our primary subsidiaries include
Alliant Energy Investments, Inc.; Alliant Energy International, Inc.; and
Alliant Energy Industrial Services, Inc. Alliant Energy Corporation also has a
50% ownership interest in a joint venture with Cargill Incorporated, named
Cargill-Alliant LLC.
We were incorporated in Wisconsin in 1988 as Heartland Development
Corporation, a subsidiary of WPL Holdings, Inc. As part of a three-way merger
involving our parent in April 1998, we merged with IES Diversified Inc., the
holding company for the non-regulated businesses of the former IES Industries
Inc., to form Alliant Energy Resources, Inc. Our principal executive offices are
located at Alliant Tower, 200 First Street SE, Cedar Rapids, Iowa 52401,
telephone number (319) 398-4411.
STRATEGY
As competitive forces shape the energy-services industry, energy providers
are being challenged to increase growth and profits. Because we expect
consumption of electricity and natural gas to grow only modestly within Alliant
Energy Corporation's domestic utility service territory, we have entered several
energy-services markets that we expect will provide opportunities for new
sources of growth. We have established new distinct platforms to complement our
existing non-regulated investments, which are designed to meet customer needs.
These platforms and existing investments include:
- Investments: Our existing investments include an oil and gas production
company, a short-line railroad, a barge company, an affordable housing
company, various real estate joint ventures and an equity stake in an
independent telecommunications provider.
- International: We are a partner in developing, or are seeking to
develop, energy generation and infrastructure in New Zealand, Australia,
China, Mexico and Brazil, markets which we have selected because of
their growth potential. We continued our expansion in 1998 by making a
strategic investment in Peak Pacific Investment Company PTE Ltd., an
energy development firm based in Singapore and active in China. Peak
Pacific broke ground on a new power plant in 1999 near Zhengding. We are
similarly seeking to expand our New Zealand presence and have recently
entered the Australian energy market. We are also seeking opportunities
in the South American energy marketplace.
- Industrial Services: We are a provider of energy and environmental
services designed to maximize productivity for industrial and large
commercial customers. We created Alliant Energy Industrial Services in
1998 by combining two new units -- Energy Planning and Energy Management
-- with two established businesses: Energy Applications, which provides
facilities-based and commodities-based energy solutions; and RMT, Inc.,
an environmental-management and engineering firm with offices throughout
the United States and the United Kingdom. We believe these four
components comprise an industrial services company with expertise that
customers find valuable.
- Cargill-Alliant: Alliant Energy Corporation has an energy-trading joint
venture with Cargill Incorporated, one of the world's largest and most
established commodity trading firms, that combines the risk-management
and commodity trading expertise of Cargill with Alliant Energy
Corporation's low-cost electricity generation and transmission business
experience. Cargill-Alliant LLC officially began operations in 1997 and
has an initial term through October 2002.
14
<PAGE> 16
- Mass Markets: We are a provider of a growing array of products and
services designed to meet the comfort, security and productivity needs
of residential and small commercial customers. We continue to pursue
opportunities in a growing residential and small commercial marketplace.
PRINCIPAL OPERATIONS
We conduct our operations through our principal subsidiaries and
investments, which are engaged in the businesses described below:
Investments: Our subsidiaries and investments include Whiting Petroleum
Corporation, Alliant Energy Transportation, Inc. and Alliant Energy Investments,
Inc., which is a holding company whose primary subsidiaries include Heartland
Properties, Inc. and Capital Square Financial Corporation and which holds an
equity stake in McLeodUSA Incorporated. Alliant Energy Investments also has
direct and indirect equity interests in various real estate and economic
development ventures, primarily concentrated in Iowa.
- Whiting Petroleum is based in Denver, Colorado and was organized to
purchase, develop and produce crude oil and natural gas. Whiting
Petroleum's construction and acquisition expenditures were approximately
$60 million in 1998 and are anticipated to be approximately $35 million
in 1999.
- Alliant Energy Transportation is a holding company whose equity
investments total $20 million as of September 30, 1999 and include the
Cedar Rapids and Iowa City Railway Company, a short-line railway, which
renders freight service between Cedar Rapids and Iowa City, Transfer
Services, Inc., which provides transloading and storage services, and a
75% equity investment in IEI Barge Services Inc., which provides barge
terminal and hauling services on the Mississippi River.
- Heartland Properties, formed in 1988, is responsible for performing
asset management and facilitating the development and financing of high
quality, affordable housing in Wisconsin and the Midwest. Heartland
Properties has a majority ownership interest in 60 properties.
- Capital Square was incorporated in 1992 to provide mortgage banking
services to facilitate Heartland Properties' development and financing
efforts in the affordable housing market.
- We also hold an equity interest of approximately 11% in McLeodUSA
Incorporated. McLeodUSA is an independent telecommunications provider
based in Cedar Rapids, Iowa. Our investment in McLeodUSA had a market
value of approximately $818 million as of September 30, 1999 (based on a
closing price of $42.5625 per share and compared to a cost basis of
approximately $30 million). Alliant Energy Investments is a party to a
stockholders' agreement that provides, subject to certain exceptions,
that it may not sell any equity securities of McLeodUSA until December
31, 2001 without the consent of the Board of Directors of McLeodUSA.
International: Our international operations include Alliant Energy
International, Inc., a holding company whose primary investments include Alliant
International New Zealand Limited, Alliant Energy Australia Pty Ltd., Interstate
Energy Corporation Pte. Ltd., Grandelight Holdings Ltd., Alliant Energy de
Mexico L.L.C. and Alliant Energy Brazil, Inc.
- Alliant International New Zealand has made equity investments in several
New Zealand utility entities since 1995, which totaled $111 million as
of September 30, 1999. As a result of electricity reforms since 1995,
several utility companies exited generation and retail businesses. As
part of its strategy to enter the generation and retail markets, Alliant
International New Zealand sold all of its interest in Central Power
Limited and a portion of its interest in Powerco Limited, each of which
were electricity distribution companies. Alliant International New
Zealand has a 10% interest in Infrastructure and Utilities NZ Ltd
("Infratil NZ"), a holding company for infrastructure and utility
businesses in New Zealand. Together with Infratil NZ, Alliant
International New Zealand intends to increase its interest in
TrustPower, an electricity generation and retail company, from the
current level of 41%.
15
<PAGE> 17
- In October 1999, Alliant Energy Australia acquired a 10% equity interest
in Infratil Australia Limited, a holding company for infrastructure and
utility businesses in Australia. Alliant Energy Australia expects to
close on the acquisition of a 22% equity interest in Southern Hydro, a
hydro-electricity generation business, in late December 1999.
- As of September 30, 1999, Alliant Energy International has invested $61
million in investments in China, which consist of an equity investment
of $26 million in two individual cogeneration facilities in China and an
equity investment of $35 million in Peak Pacific Investment Company PTE
Ltd. Peak Pacific was formed to develop investment opportunities in
generation infrastructure projects in China. In addition, we have
commitments of an additional $12 million to invest in China as of
September 30, 1999.
- Alliant Energy de Mexico owns two subsidiaries incorporated in Mexico
that have entered into agreements to operate the electrical distribution
facilities serving a resort community known as Laguna del Mar, located
in Puerto Penasco, Sonora, Mexico. As of September 30, 1999, Alliant
Energy International's investment consisted of $9 million in secured
debentures of Laguna del Mar.
- Alliant Energy Brazil was formed for the purposes of making investments
in Brazil. Several opportunities have arisen as a result of the
Brazilian government's privatization of the electricity sector. Alliant
Energy Brazil continues to examine opportunities in electricity
generation and distribution arising as a result of the privatization.
Industrial Services: Our industrial services include Alliant Energy
Industrial Services, Inc., a holding company whose primary wholly-owned
subsidiaries include Industrial Energy Applications, Inc. and RMT, Inc.
- Industrial Energy Applications offers to its customers commodities-based
energy services, such as supplying natural gas and electricity, and
facilities-based energy services, including standby generation,
cogeneration, steam production and propane air systems. It also provides
energy consulting services for customers and owns two oil and natural
gas gathering systems in Texas.
- RMT is a Madison, Wisconsin-based environmental and engineering
consulting company that serves clients nationwide in a variety of
industrial market segments. The most significant of these markets are
chemical companies, pulp and paper processors, oil and gas providers,
foundries and other manufacturers. RMT specializes in consulting on
solid and hazardous waste management, ground water quality protection,
industrial design and hygiene engineering, and air and water pollution
control.
16
<PAGE> 18
MANAGEMENT
The following table sets forth information as of September 30, 1999,
concerning our executive officers and directors. Except as otherwise indicated,
each executive officer and director has been engaged in his or her present
office or occupation for at least the past five years.
<TABLE>
<CAPTION>
NAME AGE TITLE
- ---- --- -----
<S> <C> <C>
Erroll B. Davis, Jr....................... 55 Chief Executive Officer and Director
James E. Hoffman.......................... 46 President
Thomas L. Aller........................... 50 Vice President -- Alliant Energy Investments
Charles Castine........................... 50 Vice President -- Industrial Services
John K. Peterson.......................... 47 Vice President -- International
John E. Ebright........................... 56 Vice President -- Controller
Edward M. Gleason......................... 59 Vice President -- Treasurer and Corporate
Secretary
Linda J. Wentzel.......................... 51 Assistant Corporate Secretary
Enrique Bacalao........................... 50 Assistant Treasurer
Steven F. Price........................... 47 Assistant Treasurer
Robert A. Rusch........................... 37 Assistant Treasurer
Daniel L. Siegfried....................... 39 Assistant Corporate Secretary
Alan B. Arends............................ 66 Director
Rockne G. Flowers......................... 68 Director
Joyce L. Hanes............................ 67 Director
Lee Liu................................... 66 Director
Katherine C. Lyall........................ 58 Director
Arnold M. Nemirow......................... 56 Director
Milton E. Neshek.......................... 69 Director
Jack R. Newman............................ 66 Director
Judith D. Pyle............................ 56 Director
Robert D. Ray............................. 71 Director
Robert W. Schlutz......................... 64 Director
Wayne H. Stoppelmoor...................... 65 Director
Anthony R. Weiler......................... 63 Director
</TABLE>
Erroll B. Davis, Jr. has served as Chief Executive Officer since 1990 and
has been a director since 1988. Mr. Davis also has served as President and Chief
Executive Officer of Alliant Energy Corporation since 1990.
James E. Hoffman was elected President in April 1998. Mr. Hoffman also was
elected Executive Vice President-Business Development of Alliant Energy
Corporation effective April 1998. Previously, he served as Executive Vice
President since 1996 at IES Utilities Inc. and Executive Vice President-Customer
Service & Energy Delivery from 1995 to 1997 at IES Utilities Inc. Prior to that
time, he was Chief Information Officer from 1990 to 1995 at MCI Communications.
Thomas L. Aller was elected Vice President-Alliant Energy Investments in
1998. From 1993 to 1998, Mr. Aller served as Vice President-Real Estate, IES
Investments, Inc. Prior to that time, he served as Executive Vice President,
2001 Development Corporation beginning in 1988, and was Executive Assistant to
the Mayor and City Council of Cedar Rapids from 1972 to 1988.
Charles Castine was elected Vice President-Industrial Services in 1998.
From 1994 to 1998, Mr. Castine served as Vice President, Consumer Service
Division, GE Appliance Business. Prior to that time, he served with General
Electric Power Generation in various capacities.
John K. Peterson was elected Vice President-International effective July
1998. From 1994 to 1998, Mr. Peterson served as Vice President, Latin America,
Pacific Enterprises International and, from 1993 to
17
<PAGE> 19
1994, he served as Manager, Corporate and Strategic Planning at the same firm.
Prior to that, he served in a number of management assignments with Southern
California Gas Company.
John E. Ebright was elected Vice President-Controller effective April 1998.
From 1996 to 1998, Mr. Ebright served as Controller and Chief Accounting Officer
at IES Industries Inc. and IES Utilities Inc. Prior to that time, he was Vice
President and Controller from 1987 to 1996 at MidCon Corp., a subsidiary of
Occidental Petroleum Corporation. Mr. Ebright is also an officer of Alliant
Energy Corporation, IES Utilities Inc. and Wisconsin Power and Light Company.
Edward M. Gleason was elected Vice President-Treasurer and Corporate
Secretary in 1993. Mr. Gleason has served as Vice President-Treasurer and
Corporate Secretary of Alliant Energy Corporation since 1993. He also has served
as Treasurer and Corporate Secretary of Wisconsin Power and Light Company since
1996 and Corporate Secretary of Wisconsin Power and Light Company from 1993 to
1996.
Linda J. Wentzel was appointed Assistant Corporate Secretary effective May
1998. Ms. Wentzel has served as Assistant Corporate Secretary of Alliant Energy
Corporation since May 1998. From 1995 to 1998, Ms. Wentzel served as Executive
Administrative Assistant and, from 1992 to 1995, she served as Administrative
Assistant at Alliant Energy Corporation. Ms. Wentzel is also an officer of IES
Utilities Inc. and Wisconsin Power and Light Company.
Enrique Bacalao was appointed Assistant Treasurer effective November 1998.
From 1995 to 1998, Mr. Bacalao was Vice President, Corporate Banking at the
Chicago Branch, and, from 1993 to 1995, he served as Manager and Head of the
Customer Dealing Group at the London Branch of The Industrial Bank of Japan,
Limited. Mr. Bacalao is also an officer of Alliant Energy Corporation, IES
Utilities Inc. and Wisconsin Power and Light Company.
Steven F. Price was elected Assistant Treasurer effective April 1998. Prior
to that time, Mr. Price served as Assistant Corporate Secretary of Alliant
Energy Corporation and Wisconsin Power and Light Company and Assistant Treasurer
of Alliant Energy Corporation. Mr. Price is also an officer of IES Utilities
Inc. and Wisconsin Power and Light Company.
Robert A. Rusch was elected Assistant Treasurer effective April 1998. Prior
to that time, Mr. Rusch served as Assistant Treasurer of Wisconsin Power and
Light Company from 1995 and Financial Analyst from 1989 to 1995 at Wisconsin
Power and Light Company. Mr. Rusch is also an officer of IES Utilities Inc. and
Wisconsin Power and Light Company.
Daniel L. Siegfried was elected Assistant Corporate Secretary effective
April 1998. Mr. Siegfried also serves as Senior Attorney for Alliant Energy
Corporation. From 1992 to 1998, he served as Senior Environmental Counsel at IES
Industries Inc.
Alan B. Arends has served as a director since April 1998. Mr. Arends
founded Alliance Benefit Group Financial Services Corp., an employee benefits
company, in 1983 and is currently its Chairman.
Rockne G. Flowers has served as a director since 1988. Mr. Flowers is
Chairman of Nelson Industries, Inc., a muffler, filter, industrial silencer and
active sound and vibration control technology and manufacturing firm.
Joyce L. Hanes has served as a director since April 1998. Ms. Hanes has
been the Chairman of Midwest Wholesale, Inc., a products wholesaler, since 1997
and a director of that company since 1970.
Lee Liu has served as a director of our company since April 1998. He was
elected a director and Chairman of the Board of Alliant Energy Corporation in
April 1998. Prior to that time, Mr. Liu was Chairman of the Board and Chief
Executive Officer of IES Industries Inc. and IES Utilities Inc.
Katherine C. Lyall has served as a director since 1994. Ms. Lyall has
served as President of the University of Wisconsin System since April 1992.
18
<PAGE> 20
Arnold M. Nemirow has served as a director since 1991. Mr. Nemirow is
Chairman, President and Chief Executive Officer of Bowater Incorporated, a pulp
and paper manufacturer. Mr. Nemirow served as President, Chief Executive Officer
and director of Wausau Paper Mills Company, a pulp and paper manufacturer, from
1990 until joining Bowater Incorporated in September 1994.
Milton E. Neshek has served as a director since 1988. Mr. Neshek serves as
General Counsel and as a director of Kikkoman Foods, Inc., a food products
manufacturer.
Jack R. Newman has served as a director since April 1998. Mr. Newman is a
partner of Morgan, Lewis & Bockius, an international law firm based in
Washington, D.C. Prior to January 1994, he was a partner in the law firms of
Newman & Holtzinger and Newman, Bouknight and Edgar.
Judith D. Pyle has served as a director since 1992. Ms. Pyle is Vice Chair
of the Pyle Group, a financial services company. Prior to assuming her current
position, Ms. Pyle served as Vice Chair and Senior Vice President of Corporate
Marketing of Rayovac Corporation, a battery and lighting products manufacturer.
Robert D. Ray has served as a director since April 1998. Mr. Ray has served
as President of Drake University since 1998. He served as President and Chief
Executive Officer of Life Investors Insurance Co. (AEGON USA) from 1983 to 1989
and President of Blue Cross/Blue Shield (Wellmark) from 1989 until his
retirement in 1996. Prior to that time, Mr. Ray served as Governor of the State
of Iowa for fourteen years.
Robert W. Schlutz has served as a director since April 1998. Mr. Schlutz is
President of Schlutz Enterprises, a diversified farming and retailing business.
Wayne H. Stoppelmoor has served as a director since April 1998. Mr.
Stoppelmoor has also served as Vice Chairman of the Board of Alliant Energy
Corporation since April 1998. Prior to that time, Mr. Stoppelmoor served as
Chairman, President and Chief Executive Officer of Interstate Power Company. He
retired as President of Interstate Power Company in 1996 and as Chief Executive
Officer in 1997.
Anthony R. Weiler has served as a director since April 1998. Mr. Weiler has
been Senior Vice President of Heilig-Meyers Company, a national furniture
retailer, since 1995. He was previously Chairman and Chief Executive Officer of
Chittenden & Eastman Company, a national manufacturer of mattresses.
All of our directors also serve as directors of Alliant Energy Corporation,
IES Utilities Inc., Interstate Power Company and Wisconsin Power and Light
Company. Messrs. Liu and Davis have employment agreements and Mr. Stoppelmoor
has a consulting agreement with Alliant Energy Corporation pursuant to which
their terms of office are established. All of our other executive officers have
no definite terms of office and serve at the pleasure of our Board of Directors.
None of our executive officers or directors are related to any other executive
officers or directors.
19
<PAGE> 21
DESCRIPTION OF OUTSTANDING INDEBTEDNESS
The following is information concerning our indebtedness other than the
existing senior notes.
We are a party to a 3-Year Credit Agreement with various banking
institutions. This agreement extends through October 2000, with one-year
extensions available upon agreement by the parties. We also use unused borrowing
availability under this agreement to support our commercial paper program. A
combined maximum of $450 million of borrowings under this agreement and the
commercial paper program may be outstanding at any time. Interest rates and
maturities are set at the time of borrowing. The rates are based upon quoted
market prices and the maturities are less than one year. At September 30, 1999,
we had no direct borrowings and $329.5 million of commercial paper outstanding
and backed by this facility, with interest rates ranging from 5.42% to 5.70% and
maturities ranging from 7 to 52 days. We intend to continue issuing commercial
paper backed by this facility. No conditions existed at September 30, 1999 that
would prevent the issuance of commercial paper or direct borrowings on our bank
lines.
We are also a party to a 364-Day Credit Agreement with various banking
institutions. This agreement extends through October 16, 2000, with 364-day
extensions available upon agreement by the parties. We also use the unborrowed
portion of this agreement to support our commercial paper program. A combined
maximum of $150 million of borrowings under this agreement and commercial paper
backed by this facility may be outstanding at any one time. Interest rates and
maturities are set at the time of borrowing. The rates are based upon quoted
market prices and the maturities are less than one year. There were no
borrowings under this facility and no commercial paper backed by this facility
outstanding at September 30, 1999.
At September 30, 1999, we had two interest rate swap agreements
outstanding, each with a notional amount of $100 million. These agreements
expire in April 2000, with the bank having a one-year renewal option under one
of the agreements. We entered into these agreements to reduce the impact of
changes in variable interest rates by converting variable rate borrowings into
fixed rate borrowings. Accordingly, these agreements require us to pay a fixed
rate and receive a variable rate. If we terminated the agreements at September
30, 1999, we would have had to make payments of approximately $228,125.
20
<PAGE> 22
THE EXCHANGE OFFER
PURPOSE AND EFFECT; REGISTRATION RIGHTS
We sold the existing senior notes on November 9, 1999 in transactions
exempt from the registration requirements of the Securities Act. Therefore, the
existing senior notes are subject to significant restrictions on resale. In
connection with the issuance of the existing senior notes, we entered into a
registration rights agreement, which required that we and Alliant Energy
Corporation:
- file with the SEC a registration statement under the Securities Act
relating to the exchange offer and the issuance and delivery of new
senior notes in exchange for the existing senior notes;
- use our reasonable best efforts to cause the SEC to declare the exchange
offer registration statement effective under the Securities Act; and
- use our reasonable best efforts to consummate the exchange offer not
later than 45 days following the effective date of the exchange offer
registration statement.
If you participate in the exchange offer, you will, with limited
exceptions, receive new senior notes that are freely tradeable and not subject
to restrictions on transfer. You should read this prospectus under the heading
"-- Resales of New Senior Notes" for more information relating to your ability
to transfer new senior notes.
If you are eligible to participate in the exchange offer and do not tender
your existing senior notes, you will continue to hold the untendered existing
senior notes, which will continue to be subject to restrictions on transfer
under the Securities Act.
The exchange offer is intended to satisfy our exchange offer obligations
under the registration rights agreement. The above summary of the registration
rights agreement is not complete and is subject to, and qualified by reference
to, all the provisions of the registration rights agreement. A copy of the
registration rights agreement has been filed as an exhibit to the registration
statement that includes this prospectus.
TERMS OF THE EXCHANGE OFFER
We are offering to exchange $250,000,000 in aggregate principal amount of
our 7 3/8% Senior Notes due 2009 that have been registered under the Securities
Act for a like principal amount of our outstanding unregistered 7 3/8% Senior
Notes due 2009.
Upon the terms and subject to the conditions set forth in this prospectus
and in the accompanying letter of transmittal, we will accept all existing
senior notes validly tendered and not withdrawn before 5:00 p.m., New York City
time, on the expiration date of the exchange offer. We will issue $1,000
principal amount of new senior notes in exchange for each $1,000 principal
amount of outstanding existing senior notes we accept in the exchange offer. You
may tender some or all of your existing senior notes under the exchange offer.
However, the existing senior notes are issuable in authorized denominations of
$1,000 and integral multiples thereof. Accordingly, existing senior notes may be
tendered only in denominations of $1,000 and integral multiples thereof. The
exchange offer is not conditioned upon any minimum amount of original notes
being tendered.
The form and terms of the new senior notes will be the same as the form and
terms of the existing senior notes, except that:
- the new senior notes will be registered with the SEC and thus will not be
subject to the restrictions on transfer or bear legends restricting their
transfer;
- all of the new senior notes will be represented by global notes in
book-entry form unless exchanged for notes in definitive certificated
form under the limited circumstances described under "Description of the
New Senior Notes -- Book-Entry Procedures and Form;" and
- the new senior notes will not provide for the payment of additional
interest under circumstances relating to the timing of the exchange
offer.
21
<PAGE> 23
The new senior notes will evidence the same debt as the existing senior
notes and will be issued under, and be entitled to the benefits of, the
indenture, as supplemented, governing the existing senior notes.
The new senior notes will accrue interest from the most recent date to
which interest has been paid on the existing senior notes or, if no interest has
been paid, from the date of issuance of the existing senior notes. Accordingly,
registered holders of new senior notes on the record date for the first interest
payment date following the completion of the exchange offer will receive
interest accrued from the most recent date to which interest has been paid on
the existing senior notes or, if no interest has been paid, from the date of
issuance of the existing senior notes. However, if that record date occurs prior
to completion of the exchange offer, then the interest payable on the first
interest payment date following the completion of the exchange offer will be
paid to the registered holders of the existing senior notes on that record date.
In connection with the exchange offer, you do not have any appraisal or
dissenters' rights under the Wisconsin Business Corporation Law or the
indenture, as supplemented. We intend to conduct the exchange offer in
accordance with the registration rights agreement and the applicable
requirements of the Securities Exchange Act of 1934 and the rules and
regulations of the SEC.
We will be deemed to have accepted validly tendered existing senior notes
when, as and if we have given oral or written notice of our acceptance to the
exchange agent. The exchange agent will act as agent for the tendering holders
for the purpose of receiving the new senior notes from us.
If we do not accept any tendered existing senior notes because of an
invalid tender or for any other reason, we will return certificates for any
unaccepted existing senior notes without expense to the tendering holder as
promptly as practicable after the expiration date.
EXPIRATION DATE; AMENDMENTS
The exchange offer will expire at 5:00 p.m., New York City time, on
, 2000, unless we, in our sole discretion, extend the exchange offer.
If we determine to extend the exchange offer, we will notify the exchange
agent of any extension by oral or written notice and give each registered holder
notice of the extension by means of a press release or other public announcement
before 9:00 a.m., New York City time, on the next business day after the
previously scheduled expiration date.
We reserve the right, in our sole discretion, to delay accepting any
existing senior notes, to extend the exchange offer or to amend or terminate the
exchange offer if any of the conditions described below under "-- Conditions"
have not been satisfied or waived by giving oral or written notice to the
exchange agent of the delay, extension, amendment or termination. Further, we
reserve the right, in our sole discretion, to amend the terms of the exchange
offer in any manner. We will notify you as promptly as practicable of any
extension, amendment or termination.
PROCEDURES FOR TENDERING EXISTING SENIOR NOTES
Any tender of existing senior notes that is not withdrawn prior to the
expiration date will constitute a binding agreement between the tendering holder
and us upon the terms and subject to the conditions set forth in this prospectus
and in the accompanying letter of transmittal. A holder who wishes to tender
existing senior notes in the exchange offer must do either of the following:
- properly complete, sign and date the letter of transmittal, including
all other documents required by the letter of transmittal; have the
signature on the letter of transmittal guaranteed if the letter of
transmittal so requires; and deliver that letter of transmittal and
other required documents to the exchange agent at the address listed
below under "-- Exchange Agent" on or before the expiration date; or
- if the existing senior notes are tendered under the book-entry transfer
procedures described below, transmit to the exchange agent on or before
the expiration date an agent's message.
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In addition, one of the following must occur:
- the exchange agent must receive certificates representing your existing
senior notes, along with the letter of transmittal, on or before the
expiration date; or
- the exchange agent must receive a timely confirmation of book-entry
transfer of the existing senior notes into the exchange agent's account
at DTC under the procedure for book-entry transfers described below,
along with the letter of transmittal or a properly transmitted agent's
message, on or before the expiration date; or
- the holder must comply with the guaranteed delivery procedures described
below.
The term "agent's message" means a message, transmitted by a book-entry
transfer facility to and received by the exchange agent and forming a part of
the book-entry confirmation, which states that the book-entry transfer facility
has received an express acknowledgement from the tendering participant stating
that the participant has received and agrees to be bound by the letter of
transmittal and that we may enforce the letter of transmittal against the
participant.
The method of delivery of existing senior notes, the letter of transmittal
and all other required documents to the exchange agent is at your election and
risk. Rather than mail these items, we recommend that you use an overnight or
hand delivery service. In all cases, you should allow sufficient time to assure
timely delivery to the exchange agent before the expiration date. Do not send
letters of transmittal or existing senior notes to us.
Generally, an eligible institution must guarantee signatures on a letter of
transmittal or a notice of withdrawal unless the existing senior notes are
tendered:
- by a registered holder of the existing senior notes who has not
completed the box entitled "Special Issuance Instructions" or "Special
Delivery Instructions" on the letter of transmittal; or
- for the account of an eligible institution.
If signatures on a letter of transmittal or a notice of withdrawal are
required to be guaranteed, the guarantee must be by a firm which is:
- a member of a registered national securities exchange;
- a member of the National Association of Securities Dealers, Inc.;
- a commercial bank or trust company having an office or correspondent in
the United States; or
- another "eligible institution" within the meaning of Rule 17Ad-15 under
the Securities Exchange Act.
If the letter of transmittal is signed by a person other than the
registered holder of any outstanding existing senior notes, the original notes
must be endorsed or accompanied by appropriate powers of attorney. The power of
attorney must be signed by the registered holder exactly as the registered
holder(s) name(s) appear(s) on the existing senior notes and an eligible
institution must guarantee the signature on the power of attorney.
If the letter of transmittal, or any existing senior notes or powers of
attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, these persons should so indicate when signing. Unless
waived by us, they should also submit evidence satisfactory to us of their
authority to so act.
If you wish to tender existing senior notes that are registered in the name
of a broker, dealer, commercial bank, trust company or other nominee, you should
promptly instruct the registered holder to tender on your behalf. If you wish to
tender on your behalf, you must, before completing the procedures for tendering
existing senior notes, either register ownership of the existing senior notes in
your name or obtain a properly completed bond power from the registered holder.
The transfer of registered ownership may take considerable time.
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We will determine in our sole discretion all questions as to the validity,
form, eligibility, including time of receipt, and acceptance of existing senior
notes tendered for exchange. Our determination will be final and binding on all
parties. We reserve the absolute right to reject any and all tenders of existing
senior notes not properly tendered or existing senior notes our acceptance of
which might, in the judgment of our counsel, be unlawful. We also reserve the
absolute right to waive any defects, irregularities or conditions of tender as
to any particular existing senior notes. Our interpretation of the terms and
conditions of the exchange offer, including the instructions in the letter of
transmittal, will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of existing senior notes
must be cured within the time period we determine. Neither we, the exchange
agent nor any other person will incur any liability for failure to give you
notification of defects or irregularities with respect to tenders of your
existing senior notes.
By tendering, you will represent to us that, among other things:
- the new senior notes acquired in the exchange offer are being acquired
in the ordinary course of business of the person receiving the new
senior notes;
- neither you nor any other person receiving your new senior notes has any
arrangement or understanding with any person to participate in the
distribution of the new senior notes; and
- neither you nor any other person receiving your new senior notes is our
"affiliate," as defined under Rule 405 of the Securities Act.
If you or the person receiving your new senior notes is our "affiliate," as
defined under Rule 405 of the Securities Act, or is participating in the
exchange offer for the purpose of distributing the new senior notes, you or that
other person cannot rely on the applicable interpretations of the staff of the
SEC, cannot tender your existing senior notes in the exchange offer and must
comply with the registration and prospectus delivery requirements of the
Securities Act in any resale transaction.
If you are a broker-dealer and you will receive new senior notes for your
own account in exchange for the existing senior notes, where such existing
senior notes were acquired as a result of market-making activities or other
trading activities, you must acknowledge that you will deliver a prospectus in
connection with any resale of the new senior notes.
ACCEPTANCE OF EXISTING SENIOR NOTES FOR EXCHANGE; DELIVERY OF NEW SENIOR NOTES
Upon satisfaction of all conditions to the exchange offer, we will accept,
promptly after the expiration date, all existing senior notes properly tendered
and will issue the new senior notes promptly after acceptance of the existing
senior notes.
For purposes of the exchange offer, we will be deemed to have accepted
properly tendered existing senior notes for exchange when, as and if we have
given oral or written notice of that acceptance to the exchange agent. For each
existing senior note accepted for exchange, you will receive a new senior note
having a principal amount equal to that of the surrendered existing senior note.
In all cases, we will issue new senior notes for existing senior notes that
we have accepted for exchange under the exchange offer only after the exchange
agent timely receives:
- certificates for your existing senior notes or a timely confirmation of
book-entry transfer of your existing senior notes into the exchange
agent's account at DTC; and
- a properly completed and duly executed letter of transmittal and all
other required documents or a properly transmitted agent's message.
If we do not accept any tendered existing senior notes for any reason set
forth in the terms of the exchange offer or if you submit existing senior notes
for a greater principal amount than you desire to exchange, we will return the
unaccepted or non-exchanged existing senior notes without expense to you. In the
case of existing senior notes tendered by book-entry transfer into the exchange
agent's account at DTC
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under the book-entry procedures described below, we will credit the
non-exchanged existing senior notes to your account maintained with DTC.
BOOK-ENTRY TRANSFER
We understand that the exchange agent will make a request within two
business days after the date of this prospectus to establish accounts for the
existing senior notes at DTC for the purpose of facilitating the exchange offer,
and any financial institution that is a participant in DTC's system may make
book-entry delivery of existing senior notes by causing DTC to transfer the
existing senior notes into the exchange agent's account at DTC in accordance
with DTC's procedures for transfer. Although delivery of existing senior notes
may be effected through book-entry transfer at DTC, the exchange agent must
receive a properly completed and duly executed letter of transmittal with any
required signature guarantees, or an agent's message instead of a letter of
transmittal, and all other required documents at its address listed below under
"-- Exchange Agent" on or before the expiration date, or if you comply with the
guaranteed delivery procedures described below, within the time period provided
under those procedures.
GUARANTEED DELIVERY PROCEDURES
If you wish to tender your existing senior notes and your existing senior
notes are not immediately available, or you cannot deliver your existing senior
notes, the letter of transmittal or any other required documents or comply with
DTC's procedures for transfer before the expiration date, then you may
participate in the exchange offer if:
- the tender is made through an eligible institution;
- before the expiration date, the exchange agent receives from the
eligible institution a properly completed and duly executed notice of
guaranteed delivery, substantially in the form provided by us, by
facsimile transmission, mail or hand delivery, containing (a) the name
and address of the holder and the principal amount of existing senior
notes tendered, (b) a statement that the tender is being made thereby,
and (c) a guarantee that within three New York Stock Exchange trading
days after the expiration date, the certificates representing the
existing senior notes in proper form for transfer or a book-entry
confirmation and any other documents required by the letter of
transmittal will be deposited by the eligible institution with the
exchange agent; and
- the exchange agent receives the properly completed and executed letter
of transmittal as well as certificates representing all tendered
existing senior notes in proper form for transfer, or a book-entry
confirmation, and all other documents required by the letter of
transmittal within three New York Stock Exchange trading days after the
expiration date.
WITHDRAWAL RIGHTS
You may withdraw your tender of existing senior notes at any time before
the exchange offer expires.
For a withdrawal to be effective, the exchange agent must receive a written
notice of withdrawal at its address listed below under "-- Exchange Agent." The
notice of withdrawal must:
- specify the name of the person who tendered the existing senior notes to
be withdrawn;
- identify the existing senior notes to be withdrawn, including the
principal amount, or, in the case of existing senior notes tendered by
book-entry transfer, the name and number of the DTC account to be
credited, and otherwise comply with the procedures of DTC; and
- if certificates for existing senior notes have been transmitted, specify
the name in which those existing senior notes are registered if
different from that of the withdrawing holder.
If you have delivered or otherwise identified to the exchange agent the
certificates for existing senior notes, then, before the release of such
certificates, you must also submit the serial numbers of the
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particular certificates to be withdrawn and a signed notice of withdrawal with
the signatures guaranteed by an eligible institution, unless the holder is an
eligible institution.
We will determine in our sole discretion all questions as to the validity,
form and eligibility, including time of receipt, of notices of withdrawal. Our
determination will be final and binding on all parties. Any existing senior
notes so withdrawn will be deemed not to have been validly tendered for purposes
of the exchange offer. We will return any existing senior notes that have been
tendered but that are not exchanged for any reason to the holder, without cost,
as soon as practicable after withdrawal, rejection of tender or termination of
the exchange offer. In the case of existing senior notes tendered by book-entry
transfer into the exchange agent's account at DTC, the existing senior notes
will be credited to an account maintained with DTC for the existing senior
notes. You may retender properly withdrawn existing senior notes by following
one of the procedures described under "-- Procedures for Tendering Existing
Senior Notes" at any time on or before the expiration date.
CONDITIONS
Notwithstanding any other term of the exchange offer, we will not be
required to accept for exchange, or to exchange new senior notes for, any
existing senior notes if:
- the exchange offer, or the making of any exchange by a holder of
existing senior notes, would violate any applicable law or applicable
interpretation by the staff of the SEC;
- any action or proceeding is instituted or threatened in any court or by
or before any governmental agency with respect to the exchange offer
which, in our judgment, would reasonably be expected to impair our
ability to proceed with the exchange offer; or
- at the time of the consummation of the exchange offer, the interest rate
payable on the new senior notes would be greater than 300 basis points
over the yield to maturity of a United States Treasury obligation with
the same term as the new senior notes.
The conditions listed above are for our sole benefit and we may assert them
regardless of the circumstances giving rise to any condition. Subject to
applicable law, we may waive these conditions in our discretion in whole or in
part at any time and from time to time. If we fail at any time to exercise any
of the above rights, the failure will not be deemed a waiver of those rights,
and those rights will be deemed ongoing rights which may be asserted at any time
and from time to time.
EXCHANGE AGENT
Firstar Bank, N.A. is the exchange agent for the exchange offer. You should
direct any questions and requests for assistance and requests for additional
copies of this prospectus, the letter of transmittal or the notice of guaranteed
delivery to the exchange agent addressed as follows:
By Hand, Overnight Mail, Courier, or Registered or Certified Mail:
Firstar Bank, N.A.
1555 North RiverCenter Drive
Suite 301
Milwaukee, Wisconsin 53212
Attention: Ms. Pamela Warner
By Facsimile:
(414) 276-4226
Attention: Ms. Pamela Warner
Delivery of the letter of transmittal to an address other than as listed
above or transmission via facsimile other than as listed above will not
constitute a valid delivery of the letter of transmittal.
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FEES AND EXPENSES
We will pay the expenses of the exchange offer. We will not make any
payments to brokers, dealers or others soliciting acceptances of the exchange
offer. We are making the principal solicitation by mail; however, our officers
and employees may make additional solicitations by facsimile transmission,
e-mail, telephone or in person. You will not be charged a service fee for the
exchange of your senior notes, but we may require you to pay any transfer or
similar government taxes in certain circumstances.
TRANSFER TAXES
You will not be obligated to pay any transfer taxes, unless you instruct us
to register new senior notes in the name of, or request that existing senior
notes not tendered or not accepted in the exchange offer be returned to, a
person other than the registered tendering holder.
ACCOUNTING TREATMENT
We will record the new senior notes at the same carrying values as the
existing senior notes, which is the aggregate principal amount of the existing
senior notes, as reflected in our accounting records on the date of exchange.
Accordingly, we will not recognize any gain or loss on the exchange of senior
notes. We will amortize the expenses of the offer over the term of the new
senior notes.
CONSEQUENCES OF FAILURE TO EXCHANGE EXISTING SENIOR NOTES
If you are eligible to participate in the exchange offer but do not tender
your existing senior notes, you will not have any further registration rights.
Your existing senior notes will continue to be subject to restrictions on
transfer. Accordingly, you may resell the existing senior notes that are not
exchanged only:
- to us;
- so long as the existing senior notes are eligible for resale under Rule
144A under the Securities Act, to a person whom you reasonably believe is
a "qualified institutional buyer" within the meaning of Rule 144A
purchasing for its own account or for the account of a qualified
institutional buyer in a transaction meeting the requirements of Rule
144A;
- in accordance with Rule 144 under the Securities Act or another exemption
from the registration requirements of the Securities Act;
- to an institutional accredited investor (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) that is acquiring the existing
senior notes for its own account or for the account of an institutional
accredited investor for investment purposes and not with a view to, or
for offer or sale in connection with, any distribution in violation of
the Securities Act; or
- under any effective registration statement under the Securities Act;
in each case in accordance with all other applicable securities laws. We do not
intend to register the existing senior notes under the Securities Act.
RESALES OF NEW SENIOR NOTES
We are making the exchange offer in reliance on the position of the staff
of the SEC as set forth in interpretive letters addressed to third parties in
other transactions. However, we have not sought our own interpretive letter, and
there can be no assurance that the staff of the SEC would make a similar
determination with respect to the exchange offer as it has in the interpretive
letters addressed to third parties. Based on these interpretations by the staff
of the SEC, and except as provided below, we believe that new senior notes may
be offered for resale, resold and otherwise transferred by a holder that
participates in the exchange offer and is not a broker-dealer without further
compliance with the registration and prospectus delivery provisions of the
Securities Act. To receive new senior notes that are freely tradeable, a holder
must acquire the new senior notes in the ordinary course of its business and may
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not participate, or have any arrangement or understanding with any person to
participate, in the distribution (within the meaning of the Securities Act) of
the existing senior notes or the new senior notes. Holders wishing to
participate in the exchange offer must make the representations described in
" -- Procedures for Tendering Existing Senior Notes" above.
Any holder of existing senior notes:
- who is our "affiliate," as defined in Rule 405 under the Securities Act;
- who did not acquire the new senior notes in the ordinary course of its
business; or
- who intends to participate, or has an arrangement or understanding with
any person to participate, in a distribution (within the meaning of the
Securities Act) of the existing senior notes or the new senior notes,
will be subject to separate restrictions. Each holder in any of the above
categories:
- will not be ably to rely on the interpretations of the staff of the SEC
in the above-mentioned interpretative letters;
- will not be permitted or entitled to tender existing senior notes in the
exchange offer; and
- must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any sale or other transfer of
existing senior notes unless such sale is made pursuant to an exemption
from such requirements.
In addition, if you are a broker-dealer holding existing senior notes
acquired for your own account, then you may be deemed a statutory "underwriter"
within the meaning of the Securities Act in connection with any resales of your
new senior notes. Each broker-dealer that receives new senior notes for its own
account pursuant to the exchange offer must acknowledge that it acquired the
existing senior notes for its own account as a result of market-making
activities or other trading activities and must agree that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of those new senior notes. The letter of transmittal states that by
making the above acknowledgement and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
Based on the position taken by the staff of the SEC in the interpretative
letters referred to above, we believe that broker-dealers who acquired existing
senior notes for their own accounts, as a result of market-making or other
trading activities ("participating broker-dealers") may fulfill their prospectus
delivery requirements with respect to the new senior notes received upon the
exchange of existing senior notes (other than existing senior notes that
represent an unsold allotment from the original sale of the existing senior
notes) with a prospectus meeting the requirements of the Securities Act, which
may be the prospectus prepared for an exchange offer so long as it contains a
description of the plan of distribution with respect to the sale of such new
senior notes. Accordingly, this prospectus, as it may be amended or
supplemented, may be used by a participating broker-dealer in connection with
resales of new senior notes received in exchange for existing senior notes where
such existing senior notes were acquired by such participating broker-dealer for
its own account as a result of market-making or other trading activities. See
"Plan of Distribution." However, a participating broker-dealer who intends to
use this prospectus in connection with the resale of new senior notes received
in exchange for existing senior notes pursuant to the exchange offer must notify
us, or cause us to be notified, on or before the expiration date of the exchange
offer, that it is a participating broker-dealer. Such notice may be given in the
space provided for that purpose in the letter of transmittal or may be delivered
to the exchange agent at the address set forth above under " -- Exchange
Agent." Any participating broker-dealer who is an "affiliate" of ours may not
rely on such interpretive letters and must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale transaction.
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DESCRIPTION OF THE NEW SENIOR NOTES
The existing senior notes were, and the new senior notes will be, issued
under and governed by an Indenture, as supplemented and amended by the First
Supplemental Indenture dated as of November 4, 1999 (the "Supplemental
Indenture," and collectively, the "Indenture"), between us and Firstar Bank,
N.A., as trustee and paying agent (the "Trustee"). The following summary of
certain provisions of the Indenture, the new senior notes and the guarantees is
not complete, and is qualified in its entirety by reference to the provisions of
the Indenture. A copy of the Indenture and the Supplemental Indenture have been
filed as exhibits to the registration statement that includes this prospectus.
The holders of new senior notes are entitled to the benefits of, are bound by,
and are deemed to have notice of, all the provisions of the Indenture. Wherever
defined terms of the Indenture are referred to, such defined terms are
incorporated herein by reference.
GENERAL
The Indenture does not limit the aggregate principal amount of debt
securities that may be issued thereunder and provides that debt securities may
be issued from time to time in one or more series as provided in a supplemental
indenture or Board Resolution. The new senior notes will be unconditionally
guaranteed by Alliant Energy Corporation, will be issued in the aggregate
principal amount of $250,000,000 and will mature on November 9, 2009, at their
principal amount (unless previously redeemed).
We will pay interest on the new senior notes at a rate of 7 3/8% per annum
from the most recent date to which interest has been paid on the existing senior
notes or, if no interest has been paid, from the date of issuance of the
existing senior notes. We will pay interest on the new senior notes semiannually
in arrears on May 9 and November 9 of each year, commencing on May 9, 2000,
until the principal amount has been paid or made available for payment, to the
persons in whose names the new senior notes are registered at the close of
business on May 1 or November 1, as the case may be, before each interest
payment date. Interest on the new senior notes will be computed on the basis of
a 360-day year of twelve 30-day months. The principal of and interest on the new
senior notes will be payable in U.S. dollars or in such other coin or currency
of the United States that at the time of payment is legal tender for the payment
of public and private debts.
RANKING
The new senior notes will be senior, unsecured and unsubordinated
obligations of ours ranking equally and ratably with all our other senior,
unsecured and unsubordinated obligations. The new senior notes will be
unconditionally guaranteed by Alliant Energy Corporation. The guarantees will be
unsecured obligations of Alliant Energy Corporation and will rank equally with
all other unsecured and unsubordinated indebtedness of Alliant Energy
Corporation. Because we are a holding company and conduct substantially all of
our operations through our subsidiaries, the rights of our creditors, including
those under the new senior notes, to participate in any distributions of the
assets of any of our subsidiaries or joint ventures, upon liquidation or
reorganization or otherwise, are necessarily subject, and therefore will be
effectively subordinated, to the prior claims of creditors of any of our
subsidiaries or joint ventures (including trade creditors and holders of
indebtedness issued by such subsidiary or joint venture), except to the extent
our claims as a creditor may be recognized.
In addition, because Alliant Energy Corporation is a holding company which
conducts substantially all of its operations through subsidiaries, including us,
the right of Alliant Energy Corporation, and hence the right of creditors of
Alliant Energy Corporation (including holders of the new senior notes through
the guarantees), to participate in any distribution of assets of any subsidiary
upon its liquidation or reorganization or otherwise is necessarily subject to
the prior claims of creditors of such subsidiaries, except to the extent that
claims of Alliant Energy Corporation itself as a creditor of the subsidiary may
be recognized.
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The new senior notes will also be effectively subordinated to all of our
future secured indebtedness and the related guarantees will be effectively
subordinated to all future secured indebtedness of Alliant Energy Corporation.
BOOK-ENTRY PROCEDURES AND FORM
Global Notes: Book-Entry Form
Except as provided below, the new senior notes will be issued in fully
registered book-entry form and will be represented by one or more global notes.
The global notes will be deposited with, or on behalf of, The Depositary Trust
Company of New York City ("DTC") and registered in the name of a nominee of DTC.
We expect that pursuant to procedures established by DTC (a) upon the
issuance of the new senior notes in the form of one or more global notes, DTC or
its custodian will credit, on its internal system, the principal amount of new
senior notes of the individual beneficial interests represented by these global
notes to the respective accounts of persons who have accounts with DTC
("participants") and (b) ownership of beneficial interests in the global notes
will be shown on, and the transfer of this ownership will be effected only
through, records maintained by DTC or its nominee (with respect to interests of
participants) and the records of participants (with respect to interests of
persons other than participants). Holders of senior notes may hold their
interests in the global notes directly through DTC if they are participants in
this system, or indirectly through organizations which are participants in this
system. The laws of some states of the United States may require that certain
purchasers of securities take physical delivery of the new senior notes in
definitive certificated form. Such limits and such laws may impair the ability
of such purchasers to own, transfer or pledge interests in the global notes.
So long as DTC, or its nominee, is the registered owner or holder of new
senior notes, DTC or its nominee, as the case may be, will be considered the
sole owner or holder of new senior notes represented by the global notes for all
purposes under the Indenture. No beneficial owner of an interest in the global
notes will be able to transfer that interest except in accordance with DTC's
procedures, in addition to those provided for under the Indenture with respect
to the new senior notes.
Payments of the principal of and premium, if any, and interest on the
global notes will be made to DTC or its nominee, as the case may be, as the
registered owner thereof. None of us, the Trustee or any paying agent will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the global notes
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interest.
We expect that DTC or its nominee, upon receipt of any payment of principal
of and premium, if any, and interest on the global notes, will credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the global notes as
shown on the records of DTC or its nominee. We also expect that payments by
participants to owners of beneficial interests in the global notes held through
such participants will be governed by standing instructions and customary
practice, as is now the case with securities held for the accounts of customers
registered in the names of nominees for such customers. These payments will be
the responsibility of such participants. Transfers between participants in DTC
will be effected in the ordinary way through DTC's settlement system in
accordance with DTC rules and will be settled in same day funds.
DTC has advised us that it will take any action permitted to be taken by a
holder of new senior notes only at the direction of one or more participants to
whose account the DTC interests in the global notes are credited and only in
respect of such portion of the aggregate principal amount of new senior notes as
to which such participant or participants has or have given such direction.
DTC has advised us as follows: DTC is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934. DTC was created to hold
securities for its
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participants and facilitate the clearance and settlement of securities
transactions between participants through electronic book-entry changes in
accounts of its participants, thereby eliminating the need for physical movement
of certificates. Participants include securities brokers and dealers, banks,
trust companies and clearing corporations and certain other organizations.
Indirect access to the DTC system is available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly ("indirect
participants").
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the global notes among participants of DTC, it is
under no obligation to perform such procedures, and such procedures may be
discontinued at any time. None of us, the Trustee or any of our respective
agents will have any responsibility for the performance by DTC or its
participants or indirect participants of their respective obligations under the
rules and procedures governing their operations, including maintaining,
supervising or reviewing the records relating to, payments made on account of,
beneficial ownership interests in global notes.
We have been informed by DTC that its management is aware that some
computer applications, systems and the like for processing data that are
dependent upon calendar dates, including dates before, on and after January 1,
2000, may encounter "Year 2000 problems." We have also been informed by DTC that
it has informed its participants and other members of the financial community
that it has developed and is implementing a program so that its systems, as the
same relates to the timely payment of distributions (including principal and
interest payments) to securityholders, book-entry deliveries and settlement of
trades within DTC, continue to function appropriately. According to DTC, this
program includes a technical assessment and a remediation plan, each of which is
complete. Additionally, DTC has informed us that its plan includes a testing
phase, which is expected to be completed within appropriate time frames.
However, we have been informed by DTC that its ability to perform properly
its services is also dependent upon other parties, including but not limited to
issuers and their agents, as well as third-party vendors from whom DTC licenses
software and hardware, and third-party vendors on whom DTC relies for
information or the provision of services, including telecommunication and
electrical utility service providers, among others. DTC has informed us that it
has informed its participants and other members of the financial community that
it is contacting (and will continue to contact) third-party vendors from whom
DTC acquires services to impress upon them the importance of such services being
Year 2000 compliant and determine the extent of their efforts for Year 2000
remediation (and, as appropriate, testing) of their services. In addition, DTC
has informed us that it is in the process of developing such contingency plans
as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to its participants and other members of the financial community for
informational purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
Certificated Debentures
We will issue new senior notes in certificated form in exchange for global
notes if:
- DTC or any successor depositary notifies us that it is unwilling or
unable to continue as a depositary for the global notes or ceases to be
a "clearing agency" registered under the Securities Exchange Act of 1934
and a successor depositary is not appointed by us within 90 days of such
notice,
- an Event of Default (as defined below) under the new senior notes has
occurred and is continuing, or
- we determine that the new senior notes will no longer be represented by
global notes.
The holder of a new senior note in certificated form may transfer such note
by surrendering it at the office or agency maintained by us for such purpose in
Milwaukee, Wisconsin or New York, New York.
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A holder of a new senior note may request that its new senior note be
issued in certificated form and may request at any time that its interest in a
global note be exchanged for a new senior note in certificated form. New senior
notes in certificated form may also be issued in exchange for new senior notes
represented by the global notes if no successor depositary is appointed by us as
described above or in certain other circumstances set forth in the Indenture.
PURCHASE AND CANCELLATION
We may at any time purchase new senior notes in the open market or
otherwise at any price (subject to applicable U.S. securities laws). Any
purchase by tender will be made available to all holders of new senior notes.
Any new senior notes so purchased must be promptly surrendered to the Trustee
for cancellation.
All new senior notes that are redeemed or purchased by us will promptly be
canceled. Any new senior notes in certificated form so canceled will be
forwarded to or to the order of the Trustee and such new senior notes in
certificated form may not be reissued or resold.
COVENANTS
Except as otherwise set forth under "-- Defeasance and Covenant Defeasance"
below, for so long as any new senior notes remain outstanding or any amount
remains unpaid on any of the new senior notes, we will comply with the terms of
the covenants set forth below.
Payment of Principal and Interest
We will duly and punctually pay the principal of and premium, if any, and
interest on the new senior notes in accordance with the terms of the new senior
notes and the Indenture.
Limitation on Liens
The Indenture provides that we will not, and we will not permit any of our
subsidiaries to issue, assume or guarantee any Debt (as defined below) if the
Debt is secured by any Lien (as defined below) upon any of our property or
assets (other than cash), without effectively securing the outstanding new
senior notes (together with any other indebtedness or obligation then existing
or thereafter created ranking equally with the new senior notes) equally and
ratably with the Debt. This limitation does not apply to:
- Liens in existence on the date of original issuance of the new senior
notes;
- any Lien created or arising over any property or assets which we or any
of our subsidiaries acquire, construct or create, but only if (a) the
Lien secures only principal amounts (not exceeding the cost of the
acquisition, construction or creation) of Debt incurred for the purposes
of the acquisition, construction or creation of the property or assets,
together with any costs, expenses, interest and fees incurred in
connection with the acquisition, construction or creation of the
property or assets or a guarantee given in connection with the
acquisition, construction or creation of the property or assets, (b) the
Lien is created or arises on or before 90 days after the completion of
the acquisition, construction or creation of the property or assets and
(c) the Lien is confined solely to the property or assets so acquired,
constructed or created;
- any Lien to secure the Debt incurred by us or our subsidiaries in
connection with a specifically identifiable project where the Lien
relates and is confined to a property or properties (including, without
limitation, shares or other rights of ownership in the entities which
own such property or project) involved in such project and acquired by
us or our subsidiaries after the date of original issuance of the senior
notes and the recourse of the creditors in respect of the Debt is
limited to any or all of such project and property (including as
aforesaid);
- any Lien securing amounts not more than 90 days overdue or otherwise
being contested in good faith;
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- (a) rights of financial institutions to offset credit balances in
connection with the operation of cash management programs established
for our or any of our subsidiaries' benefit or in connection with the
issuance of letters of credit for our or any of our subsidiaries'
benefit; (b) any Lien securing Debt incurred by us or any of our
subsidiaries in connection with the financing of accounts receivable;
(c) any Lien incurred or deposits made in the ordinary course of
business, including, but not limited to, (1) any mechanics',
materialmen's, carriers', workmen's, vendors' or other like Liens and
(2) any Liens securing amounts in connection with workers' compensation,
unemployment insurance and other types of social security; (d) any Lien
upon specific items of our or any of our subsidiaries' inventory or
other goods and proceeds securing our or any of our subsidiaries'
obligations in respect of bankers' acceptances issued or created to
facilitate the purchase, shipment or storage of such inventory or other
goods; (e) any Lien incurred or deposits made securing the performance
of tenders, bids, leases, trade contracts (other than for borrowed
money), statutory obligations, surety bonds, appeal bonds, government
contracts, performance bonds, return-of-money bonds and other
obligations of like nature incurred by us or any of our subsidiaries in
the ordinary course of business; (f) any Lien constituted by a right of
set off or right over a margin call account or any form of cash or cash
collateral or any similar arrangement for obligations incurred by us or
any of our subsidiaries in respect of the hedging or management of risks
under transactions involving any currency or interest rate swap, cap or
collar arrangements, forward exchange transaction, option, warrant,
forward rate agreement, futures contract or other derivative instrument
of any kind; (g) any Lien arising out of title retention or like
provisions in connection with the purchase of goods and equipment by us
or any of our subsidiaries in the ordinary course of business; and (h)
any Lien securing reimbursement obligations under letters of credit,
guarantees and other forms of credit enhancement given in connection
with the purchase of goods and equipment by us or any of our
subsidiaries in the ordinary course of business;
- (a) Liens on any property or assets acquired from an entity which is
merged with or into us or any of our subsidiaries and is not created in
anticipation of any such transaction (unless the Lien was created to
secure or provide for the payment of any part of the purchase price of
the entity to be acquired) and (b) any Lien on any property or assets
existing at the time of acquisition by us or any of our subsidiaries and
which is not created in anticipation of the acquisition (unless the Lien
was created to secure or provide for the payment of any part of the
purchase price of the property or assets so acquired);
- (a) Liens required by any contract or statute in order to permit us or
any of our subsidiaries to perform any contract or subcontract made by
us or any of our subsidiaries with or at the request of a governmental
entity or any department, agency or instrumentality of a governmental
entity, or to secure partial, progress, advance or any other payments by
us or any of our subsidiaries to a governmental unit under the
provisions of any contract or statute; (b) any Lien securing industrial
revenue, development or similar bonds issued by us or any of our
subsidiaries or for our or any of our subsidiaries' benefit, provided
that the industrial revenue, development or similar bonds are
nonrecourse to us or any of our subsidiaries; and (c) any Lien securing
taxes or assessments or other applicable governmental charges or levies;
- (a) any Lien which arises under any order of attachment, distraint or
similar legal process arising in connection with court proceedings and
any Lien which secures the reimbursement obligation for any bond
obtained in connection with an appeal taken in any court proceeding, so
long as the execution or other enforcement of the Lien arising in
connection with such legal process is effectively stayed and the claims
secured by the Lien are being contested in good faith and, if
appropriate, by appropriate legal proceedings, or any Lien in favor of a
plaintiff or defendant in any action before a court or tribunal as
security for costs or expenses; or (b) any Lien arising by operation of
law or by order of a court or tribunal or any Lien arising by an
agreement of similar effect, including, without limitation, judgment
liens; or
- any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Liens referred
to in the clauses above, for amounts not exceeding the
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principal amount of the Debt secured by the Lien so extended, renewed or
replaced, so long as the extension, renewal or replacement Lien is
limited to all or a part of the same property or assets that were
covered by the Lien that was extended, renewed or replaced (plus
improvements on such property or assets).
Although the Indenture limits our and our subsidiaries' ability to incur
Liens as set forth above, the Indenture nevertheless provides that we or our
subsidiaries may create or permit to subsist Liens over any of our and our
subsidiaries' property or assets so long as the aggregate amount of Debt secured
by all Liens that we or our subsidiaries incur (excluding the amount of Debt
secured by Liens set forth in the clauses above) does not exceed 10% of Alliant
Energy Corporation's Consolidated Net Tangible Assets.
"Consolidated Net Tangible Assets" is defined in the Indenture as the total
of all assets (including revaluations thereof as a result of commercial
appraisals, price level restatement or otherwise) appearing on the most recent
consolidated balance sheet of Alliant Energy Corporation as of the date of
determination, net of applicable reserves and deductions, but excluding
goodwill, trade names, trademarks, patents, unamortized debt discount and all
other like intangible assets (which term shall not be construed to include such
revaluations), less the aggregate of the consolidated current liabilities of
Alliant Energy Corporation appearing on such balance sheet.
"Debt" is defined in the Indenture as all of our obligations evidenced by
bonds, debentures, notes or similar evidences of indebtedness in each case for
money borrowed.
"Lien" is defined in the Indenture as any mortgage, lien, pledge, security
interest or other encumbrance. The term "Lien" does not include any easements,
rights-of-way, restrictions and other similar encumbrances and encumbrances
consisting of zoning restrictions, leases, subleases, licenses, sublicenses,
restrictions on the use of property or defects in the title thereto.
Limitation on Sale and Lease-Back Transactions
The Indenture provides that we will not enter into any Sale and Lease-Back
Transaction (as defined below) unless:
- such transaction involves a lease for a temporary period not to exceed
three years;
- such transaction is between us and one of our affiliates;
- we would be entitled to incur Debt secured by a Lien on the assets or
property involved in the Sale and Lease-Back Transaction at least equal
to the Attributable Debt (as defined below) with respect to the Sale and
Lease-Back Transaction, without equally and ratably securing the senior
notes, as described under "-- Limitation on Liens" above, other than as
described in the second paragraph of that description;
- we enter into the Sale and Lease-Back Transaction within 270 days after
our initial acquisition of the assets or property subject to the Sale
and Lease-Back Transaction;
- the aggregate amount of all Attributable Debt with respect to all Sale
and Lease-Back Transactions then in effect does not exceed 10% of
Alliant Energy Corporation's Consolidated Net Tangible Assets; or
- within 12 months preceding the sale or transfer or 12 months following
the sale or transfer, regardless of whether we make any such sale or
transfer, we apply, in the case of a sale or transfer for cash, an
amount equal to the net proceeds of the sale or transfer and, in the
case of a sale or transfer other than for cash, an amount equal to the
fair value of the assets so leased at the time that we enter into such
arrangement (as determined by our Board of Directors), (a) to the
retirement of Debt, incurred or assumed by us which by its terms matures
at, or is extendible or renewable at the option of the obligor to, a
date more than 12 months after the date of incurring, assuming or
guaranteeing such Debt or (b) to an investment in any of our assets.
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"Attributable Debt" is defined in the Indenture as, with respect to any
particular Sale and Lease-Back Transaction, at the time of determination, the
present value (discounted at the rate of interest implicit in the transaction
determined in accordance with generally accepted accounting principles) of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in the Sale and Lease-Back Transaction (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended).
"Sale and Lease-Back Transaction" is defined in the Indenture as any
arrangement with any entity providing for the lease by us of any of the assets
that we have sold or transferred or that we have agreed to sell or transfer to
that entity.
Consolidation, Merger, Conveyance, Sale or Lease
The Indenture provides that we may, without the consent of any holders of
the new senior notes, consolidate with, merge into or be merged with, or convey,
transfer or lease our property and assets substantially as an entirety to
another U.S. entity so long as:
- if we are not the surviving entity, the surviving entity expressly
assumes by supplemental indenture all of our applicable obligations
under the new senior notes and the Indenture;
- immediately after giving effect to the transaction, no Event of Default
and no event which, after notice or lapse of time or both, would become
an Event of Default, has occurred and is continuing; and
- either we or our successor delivers to the Trustee an officers'
certificate and an opinion of counsel stating that such consolidation,
merger, conveyance, transfer or lease, and if a supplemental indenture
is required by the transaction, the supplemental indenture, comply with
the Indenture and all conditions precedent in the Indenture relating to
such transaction.
In addition, we may assign and delegate all of our rights and obligations
under the Indenture, the new senior notes, the Supplemental Indenture and all
other documents, agreements and instruments related thereto, as applicable, to
Alliant Energy Corporation or a subsidiary of Alliant Energy Corporation, any
person that owns all of our capital stock or any person that owns all of the
capital stock of a person that owns all of our capital stock, and upon the
assumption of such rights and obligations by such person, we will be
automatically released from the obligations, provided that immediately after
giving effect to the transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, has occurred
and is continuing.
The Indenture also provides that Alliant Energy Corporation may, without
the consent of any holders of the new senior notes, consolidate with, merge into
or be merged with, or convey, transfer or lease its property and assets
substantially as an entirety to another U.S. entity so long as:
- if Alliant Energy Corporation is not the surviving entity, the surviving
entity assumes by supplemental indenture all of Alliant Energy
Corporation's obligations under the guarantees and the Indenture;
- immediately after giving effect to the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become
an Event of Default, has occurred and is continuing; and
- either Alliant Energy Corporation or the successor person delivers to
the Trustee an officers' certificate and an opinion of counsel stating
that such consolidation, merger, conveyance, transfer or lease, and if a
supplemental indenture is required by the transaction, the supplemental
indenture, comply with the Indenture and all conditions precedent in the
Indenture, relating to such transactions.
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Money For Securities Payments To Be Held In Trust
The Indenture provides that if we at any time act as our own Paying Agent
with respect to the new senior notes, we will, on or before each due date of the
principal of, or any premium or interest on, any of the new senior notes,
segregate and hold in trust for the benefit of the persons entitled a sum in the
currency in which the new senior notes are payable sufficient to pay the
principal or any premium or interest due until such sums are paid or otherwise
disposed of, and will promptly notify the Trustee of our action or failure to
act.
Whenever we have one or more Paying Agents for any series of debt
securities, we will, on or prior to each due date of the principal of, or any
premium or interest on any series of debt securities, deposit with any Paying
Agent a sum sufficient to pay the principal or any premium or interest due, the
sum to be held in trust for the benefit of the persons entitled, and, unless the
Paying Agent is the Trustee, we will promptly notify the Trustee of our action
or failure to act.
We will cause each Paying Agent for each series of debt securities, if
other than the Trustee, to execute and deliver to the Trustee an agreement that
requires the Paying Agent:
- to hold all sums held by it for the payment of the principal of, or any
premium or interest on, any series of debt securities in trust for the
benefit of the persons entitled until such sums are paid or otherwise
disposed of as provided in the Indenture;
- to give the Trustee notice of any default by us or Alliant Energy
Corporation in the making of any payment of principal, any premium or
interest on any series of debt securities; and
- at any time during the continuance of the default, upon the written
request of the Trustee, pay to the Trustee all sums held in trust by it.
We or Alliant Energy Corporation may at any time pay, or direct any Paying
Agent to pay, to the Trustee all sums held in trust by us or the Paying Agent,
and such sums will be held by the Trustee upon the same terms as those
applicable to us or the Paying Agent; and, upon such payment by the Paying Agent
to the Trustee, the Paying Agent will be released from all further liability
with respect to such sums.
Except as otherwise provided in the Indenture, any money deposited with the
Trustee or the Paying Agent, or held by us, in trust for the payment of the
principal of, any premium or interest on any series of debt securities and
remaining unclaimed for two years after such principal or any such premium or
interest has become due and payable will be discharged from such trust; and the
holder of the new senior note will thereafter, as an unsecured general creditor,
look only to us or Alliant Energy Corporation, as the case may be, for payment,
and all liability of the Trustee or the Paying Agent with respect to the trust
money, and all liability of us as trustee thereof, will cease; provided,
however, that the Trustee or the Paying Agent may at our expense cause to be
published once, in an authorized newspaper or mailed to holders of the new
senior notes, or both, notice that such money remains unclaimed and that, after
a date specified, which will not be less than 30 days from the date of the
publication or mailing nor later than two years after the principal and any
premium or interest have become due and payable, any unclaimed balance of such
money then remaining will be repaid to us or Alliant Energy Corporation, as the
case may be.
Company And Guarantor Statements As To Compliance; Notice Of Certain Defaults
We and Alliant Energy Corporation will each deliver to the Trustee, within
120 days after the end of each fiscal year, a written statement signed by our
respective principal executive officer, principal financial officer or principal
accounting officer, stating that:
- a review of our respective activities during the year and of our
respective performances under the Indenture has been made under such
officer's supervision, and
- to the best of such officer's knowledge, based on that review, (a) we or
Alliant Energy Corporation, as the case may be, have complied with all
the conditions and covenants imposed on
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each of us by the Indenture throughout the year, or, if there has been a
default in the fulfillment of any condition or covenant, specifying each
default known to such officer and its nature and status, and (b) no
event has occurred and is continuing which is, or after notice or lapse
of time or both would become, an Event of Default, or, if such an event
has occurred and is continuing, specifying each such event known to such
officer and its nature and status.
We and Alliant Energy Corporation will deliver to the Trustee, within five
days after its occurrence, written notice of any Event of Default or any event
which after notice or lapse of time or both would become an Event of Default.
MODIFICATION OF THE INDENTURE
We, Alliant Energy Corporation and the Trustee may modify and amend the
Indenture or any supplemental indenture or the rights of the holders of the debt
securities of each series to be affected with the consent of the holders of more
than 50% of the principal amount of the outstanding debt securities of each
affected series (with each series voting as a class). Such majority holders may
also waive compliance by us or Alliant Energy Corporation with any provision of
the Indenture, any supplemental indenture or the debt securities of any series.
However, without the consent of a holder of each debt security affected, an
amendment or waiver may not:
- reduce the amount of debt securities whose holders must consent to an
amendment or waiver;
- change the rate or the time for payment of interest;
- change the principal or the fixed maturity;
- waive a default in the payment of principal, premium or interest;
- make any debt securities payable in a different currency;
- make any change in the provisions of the Indenture concerning (a) waiver
of existing defaults; (b) right of holders of debt securities to receive
payment; or (c) amendments and waivers with consent of holders of debt
securities;
- impair the right to institute suit for the enforcement of any payment on
or after the stated maturity of such payment or, in the case of
redemption, on or after the redemption date; or
- modify or effect in any manner adverse to the holders the terms and
conditions of Alliant Energy Corporation's obligations regarding due and
punctual payment of principal of, or any premium or interest on, or any
sinking fund requirements of, any debt securities subject to guarantees.
We, Alliant Energy Corporation and the Trustee may amend or supplement the
Indenture without the consent of any holder of any of the debt securities:
- to cure any ambiguity, defect or inconsistency in the Indenture, any
supplemental indenture, the debt securities or guarantees;
- to provide for the assumption of all of our obligations under the debt
securities, the Indenture, or any supplemental indenture or of Alliant
Energy Corporation's obligations under the guarantees and the Indenture
or any supplemental indenture by any corporation in connection with a
merger or consolidation of us or Alliant Energy Corporation or transfer
or lease of our property and assets substantially as an entirety or
Alliant Energy Corporation's property and assets substantially as an
entirety;
- make any change that does not adversely affect the rights of any holder
of debt securities;
- to add to the rights of holders of any of the debt securities;
- to secure any debt securities as provided under the heading "--
Limitation on Liens";
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- to evidence the succession of another person to us or Alliant Energy
Corporation, and the assumption by the successor person of the covenants
of us and Alliant Energy Corporation, as the case may be, provided in
the Indenture or the senior notes;
- to establish the form or terms of any debt securities;
- to evidence and provide for the acceptance of appointment under the
Indenture by a successor Trustee with respect to the debt securities and
to add to or change any of the provisions of the Indenture necessary to
facilitate the administration of the Indenture by more than one Trustee;
or
- to supplement any of the provisions of the Indenture to the extent
necessary to permit or facilitate defeasance (as defined below) and
discharge of any debt securities, provided that such action will not
adversely affect the interests of any holder of any debt security in any
material respect.
EVENTS OF DEFAULT
Any one of the following is an Event of Default with respect to the senior
notes:
(a) if we or Alliant Energy Corporation default in the payment of any
interest on the senior notes, and such default continues for 30 days;
(b) if we or Alliant Energy Corporation default in payment of
principal of or premium, if any, on the senior notes when the same become
due at maturity, upon redemption, by declaration or otherwise;
(c) if we or Alliant Energy Corporation materially default in the
performance or materially breach any of our respective covenants or
obligations in the Indenture, any supplemental indenture or the senior
notes and this material default or breach continues for a period of 90 days
after we or Alliant Energy Corporation receive written notice from the
Trustee or the holders of at least 25% in aggregate principal amount of the
outstanding senior notes;
(d) if we or Alliant Energy Corporation default in the payment of the
principal of any bond, debenture, note or other evidence of indebtedness,
in each case for money borrowed, or in the payment of principal under any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money
borrowed, which default for payment of principal is in an aggregate
principal amount exceeding $25,000,000 (or its equivalent in any other
currency or currencies) when such indebtedness becomes due and payable
(whether at maturity, upon redemption or acceleration or otherwise), if
such default continues unremedied or unwaived for more than 30 business
days and the time for payment of such amount has not been expressly
extended;
(e) our failure or the failure by Alliant Energy Corporation generally
to pay our respective debts as they become due, or the admission in writing
of our inability or Alliant Energy Corporation's inability to pay our
respective debts generally, or the making of a general assignment for the
benefit of our respective creditors, or the institution of any proceeding
by or against Alliant Energy Corporation or us (other than any proceeding
brought against us or Alliant Energy Corporation, as applicable, that is
dismissed within 180 days from its commencement) seeking to adjudicate us
or Alliant Energy Corporation, as the case may be, bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition (in each case, other than a
solvent liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition) of us or Alliant Energy Corporation, as
the case may be, or our respective debts under any law relating to
bankruptcy, insolvency, reorganization, moratorium or relief of debtors, or
seeking the entry of an order for relief or appointment of an
administrator, receiver, trustee, intervenor or other similar official for
us or Alliant Energy Corporation, as the case may be, or for any
substantial part of our property or the property of Alliant Energy
Corporation, or the taking of any action by Alliant Energy Corporation or
us to authorize any of the actions set forth in this clause; and
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(f) a material default in the performance or material breach by
Alliant Energy Corporation of any covenant or obligation of Alliant Energy
Corporation contained in the guarantee, and the continuance of such
material default or breach for a period of 90 days after which we or
Alliant Energy Corporation receive written notice from the Trustee or the
holders of at least 25% in aggregate principal amount of the senior notes.
If an Event of Default with respect to the senior notes occurs and is
continuing, either the Trustee or the holders of at least 25% in aggregate
principal amount of the outstanding senior notes may declare the principal
amount of the outstanding senior notes, and any interest accrued on the senior
notes, to be due and payable immediately by delivering a written notice to us
and Alliant Energy Corporation (and to the Trustee if given by the holders). At
any time after this declaration of acceleration has been made, but before a
judgment or decree for payment of money has been obtained, the holders of a
majority in principal amount of all of the senior notes, by notice to the
trustee, may rescind this declaration and all its consequences if all Events of
Default have been cured or waived (other than the non-payment of principal of
the outstanding new senior notes which has become due solely by reason of the
declaration of acceleration), and such declaration of acceleration and its
consequences will be automatically annulled and rescinded.
Holders of the new senior notes may not enforce the Indenture, the new
senior notes or any guarantees, if applicable, unless:
- the holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the senior notes;
- the holders of not less than 25% in aggregate principal amount of the
senior notes have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee;
- the holder or holders have offered the Trustee indemnity satisfactory to
the Trustee against the costs, expenses and liabilities to be incurred
in compliance with such request;
- the Trustee, for 60 days after its receipt of such notice, request and
offer of indemnity, has failed to institute any such proceedings; and
- no direction inconsistent with such written request has been given to
the Trustee during the 60-day period by the holders of a majority of the
outstanding aggregate principal amount of the senior notes.
However, these limitations do not apply to a suit instituted by a holder of
any new senior notes for the enforcement of the payment of the principal of or
premium, if any, or interest on the new senior notes on or after the applicable
due date specified in the new senior notes.
If the Trustee collects any money pursuant to an Event of Default, it will
pay out the money in the following order:
- first, to the Trustee for amounts to it as compensation for its services
and any indemnities owed to it;
- second, to holders of the senior notes in respect of which or for the
benefit of which such money has been collected for amounts due and
unpaid on the senior notes for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the senior notes for principal and interest, respectively;
and
- third, to the person or persons lawfully entitled thereto, or as a court
of competent jurisdiction may direct.
The Trustee may fix a record date (with respect to registered securities)
and payment date for any such payment to holders of the senior notes.
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Any such record date will not be less than 10 days nor more than 60 days
prior to the applicable payment date.
OPTIONAL REDEMPTION
We may redeem the new senior notes at our option in whole or in part at any
time, on at least 30 days' but not more than 60 days' prior written notice
mailed to the registered holders of the new senior notes, at a price equal to
the greater of (a) 100% of the principal amount of the new senior notes being
redeemed and (b) the sum of the present values of the principal amount of the
new senior notes to be redeemed and the remaining scheduled payments of interest
on the new senior notes from the redemption date to November 9, 2009, discounted
from their respective scheduled payment dates to the redemption date
semi-annually (assuming a 360-day year consisting of twelve 30-day months) at a
discount rate equal to the Treasury Yield plus 20 basis points, plus accrued
interest on the new senior notes to the redemption date.
"Treasury Yield" means, with respect to any redemption date, the annual
rate equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue (as defined below), assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price (as defined below) for such redemption date.
"Comparable Treasury Issue" means the United States treasury security
selected by an Independent Investment Banker (as defined below) as having a
maturity comparable to the remaining term of the senior notes to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the senior notes.
"Comparable Treasury Price" means, with respect to any date of redemption,
(a) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding the redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (b) if such release (or any successor release) is not
published or does not contain such prices on the business day in question, the
Reference Treasury Dealer Quotation (as defined below) for the redemption date.
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by us and reasonably acceptable to
the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the Reference
Treasury Dealer (as defined below) and redemption date, the average, as
determined by us, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount and quoted in
writing to us by the Reference Treasury Dealer at 5:00 p.m. on the third
business day preceding the redemption date).
"Reference Treasury Dealer" means a primary United States government
securities dealer in New York City appointed by us and reasonably acceptable to
the Trustee.
Notice of redemption will be mailed by first class mail at least 30 but not
more than 60 days before the redemption date to each holder of the new senior
notes to be redeemed at its registered address.
If fewer than all the new senior notes are to be redeemed, selection of new
senior notes for redemption will be made by the Trustee in any manner the
Trustee deems fair and appropriate and that complies with applicable legal and
securities exchange requirements.
Unless we default in payment of the redemption price, from and after the
date of redemption, the new senior notes or portions thereof called for
redemption will cease to bear interest, and the holders of the new senior notes
will have no right in respect of the new senior notes except the right to
receive the redemption price.
40
<PAGE> 42
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that we and Alliant Energy Corporation may elect (a)
to be discharged from any and all of our respective obligations in respect of
the new senior notes ("defeasance") (except in each case for the obligations to
register the transfer or exchange of the new senior notes, replace stolen, lost
or mutilated new senior notes, maintain paying agencies and hold moneys for
payments in trust) or (b) not to comply with certain covenants ("covenant
defeasance") of the Indenture with respect to the new senior notes described
above under "-- Covenants" if, in either case, we and Alliant Energy Corporation
irrevocably deposit with the Trustee money or U.S. Government Obligations (as
defined below) or a combination of money or U.S. Government Obligations, in an
amount sufficient (together with interest paid on the U.S. Government
Obligations) to pay, when due, the principal of and premium, if any, and
interest on the outstanding new senior notes to maturity or redemption or an
installment of interest, as the case may be. We and Alliant Energy Corporation
must satisfy certain other conditions before we may effect defeasance or
covenant defeasance. These conditions include:
- that no Event of Default or event, which with notice or lapse of time
would become an Event of Default (including by reason of such deposit)
with respect to the new senior notes, will have occurred and be
continuing on the date of the deposit or insofar as an Event of Default
described in clause (e) of the first paragraph under "-- Events of
Default" is concerned, at any time during the period ending on the 181st
day of such deposit (it being understood that this condition will not be
satisfied until the expiration of such period); and
- that the defeasance or covenant defeasance will not result in the breach
or violation of, or constitute a default under, the Indenture or any
other material agreement or instrument under which we are bound or under
which Alliant Energy Corporation is bound, as the case may be.
To exercise any such option, we or Alliant Energy Corporation, as
applicable, will be required to deliver to the Trustee (a) an opinion of
independent counsel of recognized standing to the effect that (1) the holders of
the new senior notes will not recognize income, gain or loss for United States
federal income tax purposes as a result of such deposit, and will be subject to
United States federal income tax on the same amounts, in the same manner and at
the same times as would have been the case absent such deposit, which in the
case of defeasance must be based on a change in law or a published ruling by the
United States Internal Revenue Service and (2) the deposit will not result in us
or Alliant Energy Corporation being deemed an "investment company" required to
be registered under the Investment Company Act of 1940 and (b) an officer's
certificate as to compliance with all conditions precedent provided for in the
Indenture relating to the satisfaction and discharge of the new senior notes.
If we or Alliant Energy Corporation wish to deposit or cause to be
deposited money or U.S. Government Obligations to pay or discharge the principal
of, premium, if any, and interest on the outstanding new senior notes to and
including a redemption date on which all of the outstanding new senior notes are
to be redeemed, the redemption date will be irrevocably designated by a
resolution of our Board of Directors or a resolution of the Board of Directors
of Alliant Energy Corporation, as the case may be, delivered to the Trustee on
or prior to the date of deposit of such money or U.S. Government Obligations,
and such Board resolution will be accompanied by an irrevocable notice of the
defeasance to the Trustee.
If the Trustee is unable to apply any money or U.S. Government Obligations
deposited in trust to effect a defeasance or covenant defeasance by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then any obligations from
which we or Alliant Energy Corporation had been discharged or released will be
revived and reinstated as though no such deposit of moneys in trust had
occurred, until the time that the Trustee is permitted so to apply all of the
money or U.S. Government Obligations deposited in trust.
"U.S. Government Obligations" means direct obligations of the United States
for the payment of which its full faith and credit is pledged, or obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States and the payment of which is unconditionally
41
<PAGE> 43
guaranteed by the United States, and will also include a depository receipt
issued by a bank or trust company as custodian with respect to any U.S.
Government Obligation or a specific payment of interest on or principal of any
U.S. Government Obligation held by a custodian for the account of a holder of a
depository receipt. However, except as required by law, a custodian is not
authorized to make any deduction from the amount payable to the holder of any
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by a depository receipt.
PAYMENT AND PAYING AGENT
We have appointed the Trustee to act as paying agent with respect to the
new senior notes. We may at any time designate additional paying agents or
rescind the designation of any paying agents or approve a change in the office
through which any paying agent acts, except that we will be required to maintain
a paying agent in each place of payment for the new senior notes.
All moneys paid by us to the paying agent for the payment of the principal
of, or premium, if any, or interest on, any new senior notes that remain
unclaimed at the end of two years after such principal, premium, if any, or
interest has become due and payable will be repaid to us and the holder of the
new senior notes will thereafter look only to us for payment of any such
amounts.
GOVERNING LAW
The Indenture and the new senior notes will be governed by, and construed
in accordance with, the laws of the State of Wisconsin.
42
<PAGE> 44
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
THIS SUMMARY IS OF A GENERAL NATURE AND IS INCLUDED SOLELY FOR
INFORMATIONAL PURPOSES. IT IS NOT INTENDED TO BE, NOR SHOULD IT BE CONSTRUED AS
BEING, LEGAL OR TAX ADVICE. NO REPRESENTATION WITH RESPECT TO THE CONSEQUENCES
TO ANY PARTICULAR PURCHASER OF THE NEW SENIOR NOTES IS MADE. PROSPECTIVE
PURCHASERS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THEIR
PARTICULAR CIRCUMSTANCES.
The following is a summary of certain material United States federal income
tax consequences to a beneficial owner of new senior notes (a "United States
Holder") who is (a) a citizen or resident of the United States, (b) a
corporation, partnership or other entity treated as a corporation or a
partnership for United States federal income tax purposes created or organized
in or under the laws of the United States, any state thereof or the District of
Columbia, (c) an estate whose income is subject to United States federal income
tax regardless of its source, or (d) a trust if a court within the United States
is able to exercise primary supervision over the administration of the trust and
one or more United States persons have the authority to control all substantial
decisions of the trust.
The following summary deals only with new senior notes held as capital
assets by purchasers at the issue price who are United States Holders and not
with special classes of holders, such as dealers in securities or currencies,
financial institutions, life insurance companies, tax-exempt entities, persons
holding new senior notes as a hedge against or which are hedged against currency
risks, and persons whose functional currency is not the U.S. dollar. Persons
considering the purchase of new senior notes should consult their own tax
advisors concerning these matters and as to the tax treatment under foreign,
state and local tax laws and regulations. There can be no assurance that the
Internal Revenue Service will not challenge the conclusions stated below, and no
ruling from the IRS has been or will be sought on any of the matters discussed
below.
This summary is based upon the Internal Revenue Code of 1986, as amended,
Treasury Regulations, IRS rulings and pronouncements and judicial decisions now
in effect, all of which are subject to change at any time. Changes in this area
of law may be applied retroactively in a manner that could cause the tax
consequences to vary substantially from the consequences described below,
possibly adversely affecting a United States Holder. The authorities on which
this summary is based are subject to various interpretations, and it is
therefore possible that the federal income tax treatment of the purchase,
ownership and disposition of the new senior notes may differ from the treatment
described below.
CONSEQUENCES OF THE EXCHANGE OFFER TO EXCHANGING AND NONEXCHANGING HOLDERS
The exchange of an existing senior note for a new senior note pursuant to
the exchange offer will not be taxable to an exchanging United States Holder for
federal income tax purposes. As a result, an exchanging United States Holder
will not recognize any gain or loss on the exchange; the holding period for the
new senior note will include the holding period for the existing senior note;
and the basis of the new senior note will be the same as the basis for the new
senior note.
The exchange offer will result in no federal income tax consequences to a
nonexchanging United States Holder of existing senior notes.
GENERAL
A United States Holder using the accrual method of accounting for federal
income tax purposes is required to include interest paid or accrued on the new
senior notes in ordinary income as interest accrues, while a United States
Holder using the cash receipts and disbursements method of accounting for
federal income tax purposes must include interest in ordinary income when
payments are received (or made available for receipt) by the United States
Holder.
Although the existing senior notes were issued at a discount, such discount
is not considered to be original issue discount for tax purposes. However, the
existing senior notes provide for the payment of
43
<PAGE> 45
additional amounts of interest under certain circumstances and therefore both
the existing and new senior notes are subject to the Treasury Regulations that
apply to debt instruments that provide for one or more contingent payments. For
purposes of determining whether the existing senior notes were issued with
original issue discount, we intend to take the position that the existing senior
notes did not, as of the issue date, represent contingent payment debt because
the likelihood of paying an increased rate of interest as a result of a
Registration Default was remote. Accordingly, both the existing and new senior
notes will not be considered to be issued with original issue discount. A United
States Holder may not take a contrary position unless such contrary position is
disclosed in the proper manner to the IRS. United States Holders should consult
their tax advisors regarding the tax consequences of the new senior notes being
treated as contingent payment debt.
If the IRS successfully asserts that these contingent payments were not
remote as of the issue date, the amount and timing of the interest income that a
United States Holder is required to include in taxable income may have to be
redetermined and any gain or loss on a sale, exchange, redemption or retirement
of the new senior notes, may be recharacterized as ordinary income.
SALE, EXCHANGE, REDEMPTION OR RETIREMENT OF NEW SENIOR NOTES
Upon the sale, exchange, redemption or retirement of a new senior note, a
United States Holder will generally recognize capital gain or loss equal to the
difference between the amount realized (not including any amounts attributable
to accrued and unpaid interest) and the United States Holder's tax basis in the
new senior note. A United States Holder's tax basis in a new senior note will
generally be its cost. Such capital gain or loss will generally be long-term
capital gain or loss if the new senior notes were held for more than one year;
otherwise, the capital gain or loss will be short-term.
ASSUMPTION OF THE NEW SENIOR NOTES
An assumption (due to a consolidation, share exchange, merger, conveyance,
transfer or other transaction) of our obligations under the new senior notes may
be deemed for United States federal income tax purposes to be an exchange of the
new senior notes for new debt instruments resulting in the recognition of
taxable gain or loss to a United States Holder and possibly other adverse United
States tax consequences. Investors should consult their tax advisors regarding
the United States federal, state, local and foreign tax consequences of such an
assumption.
WITHHOLDING TAXES AND REPORTING REQUIREMENTS
Interest payments and payments of principal and any premium with respect to
a new senior note will be reported to the extent required by the Code to the
United States Holders and the IRS. These amounts will ordinarily not be subject
to withholding of United States federal income tax. However, a backup
withholding tax at a rate of 31% will apply to these payments if a United States
Holder fails to properly certify to us or our agent the United States Holder's
taxpayer identification number and certain other information, or fails to report
all interest and dividends required to be reported on its federal income tax
returns, or otherwise fails to establish, in the manner prescribed by law, an
exemption from backup withholding. Any amount withheld under backup withholding
is allowable as a credit against the United States Holder's federal income tax
liability, provided such person furnishes the required information to the IRS.
New IRS regulations will generally be applicable to payments made after
December 31, 1999. In general, these regulations do not significantly alter the
substantive withholding and information reporting requirements but unify and
clarify current procedures. Under the new regulations, special rules apply which
permit the shifting of primary responsibility for withholding to certain
financial intermediaries acting on behalf of beneficial owners. United States
Holders of new senior notes should consult with their own tax advisors regarding
the application of the backup withholding rules to their particular situation,
the availability of exemption therefrom, the procedure for obtaining such an
exemption, if available, and the impact of the new regulations with respect to
new senior notes.
44
<PAGE> 46
PLAN OF DISTRIBUTION
Each broker-dealer that receives new senior notes for its own account as a
result of market-making activities or other trading activities in connection
with the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of such new senior notes. This prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of new senior notes received in exchange for existing
senior notes where such existing senior notes were acquired as a result of
market-making activities or other trading activities.
We will not receive any proceeds in connection with the exchange offer or
any sale of new senior notes by broker-dealers. New senior notes received by
broker-dealers for their own account pursuant to the exchange offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the new senior notes
or a combination of such methods of resale, at market prices prevailing at the
time of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealers or the purchasers of any such new
senior notes. Any broker-dealer that resells new senior notes that were received
by it for its own account pursuant to the exchange offer and any broker-dealer
that participates in a distribution of such new senior notes may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit on any
such resale of new senior notes and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation under the
Securities Act. The letter of transmittal states that by acknowledging that it
will deliver, and by delivering, a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act. See "The Exchange Offer -- Resales of the New Senior Notes."
45
<PAGE> 47
LEGAL MATTERS
Foley & Lardner of Milwaukee, Wisconsin will issue an opinion about certain
legal matters with respect to the new senior notes.
EXPERTS
The audited financial statements and schedules incorporated by reference in
this prospectus and elsewhere in the registration statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
46
<PAGE> 48
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$250,000,000
[ALLIANT ENERGY RESOURCES, INC. LOGO]
ALLIANT ENERGY RESOURCES, INC.
NEW 7 3/8% SENIOR NOTES DUE 2009
UNCONDITIONALLY GUARANTEED BY
ALLIANT ENERGY CORPORATION
-----------------------
PROSPECTUS
-----------------------
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 49
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the provisions of the Wisconsin Business Corporation Law and
Article VIII of the Registrants' Bylaws, directors and officers of the
Registrants are entitled to mandatory indemnification from the Registrants
against certain liabilities (which may include liabilities under the Securities
Act of 1933) and expenses (i) to the extent such officers or directors are
successful in the defense of a proceeding; and (ii) in proceedings in which the
director or officer is not successful in defense thereof, unless it is
determined that the director or officer breached or failed to perform his or her
duties to either Registrant and such breach or failure constituted: (a) a
willful failure to deal fairly with either Registrant or its shareholders in
connection with a matter in which the director or officer had a material
conflict of interest; (b) a violation of criminal law unless the director or
officer had a reasonable cause to believe his or her conduct was lawful or had
no reasonable cause to believe his or her conduct was unlawful; (c) a
transaction from which the director or officer derived an improper personal
profit; or (d) willful misconduct. Additionally, under the Wisconsin Business
Corporation Law, directors of the Registrants are not subject to personal
liability to the Registrants, their shareholders or any person asserting rights
on behalf thereof, for certain breaches or failures to perform any duty
resulting solely from their status as directors, except in circumstances
paralleling those outlined in (a) through (d) above.
The indemnification provided by the Wisconsin Business Corporation Law and
the Registrants' Bylaws is not exclusive of any other rights to which a director
or officer of the Registrants may be entitled. The Registrants also carry
directors' and officers' liability insurance.
The Registration Rights Agreement contains provisions under which the
underwriters agree to indemnify the directors and officers of the Registrants
against certain liabilities, including liabilities under the Securities Act of
1933 or to contribute to payments the directors and officers may be required to
make in respect thereof.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The exhibits listed in the accompanying Exhibit Index are
filed (except where otherwise indicated) as part of this Joint Registration
Statement.
(b) Financial Statement Schedules. Schedule II - Valuation and Qualifying
Accounts is hereby incorporated by reference to Alliant Energy Corporation's
Annual Report on Form 10-K for the year ended December 31, 1998, as amended
(File No. 1-9894). All other schedules are omitted because they are not
applicable or not require, or because the required information is shown either
in the consolidated financial statements or in the notes thereto.
(c) Reports, Opinions or Appraisals. Not applicable.
ITEM 22. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range
II-1
<PAGE> 50
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Each of the undersigned Registrants hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by a
Registrant of expenses incurred or paid by a director, officer or controlling
person of a Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, each of the Registrants will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) Each of the undersigned Registrants hereby undertakes to respond to
requests for information that is incorporated by reference into the Prospectus
pursuant to Item 4, 10(b), 11 or 13 of this form, within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the Registration Statement
through the date of responding to the request.
(e) Each of the undersigned Registrants hereby undertakes to supply by
means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
II-2
<PAGE> 51
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Madison, State of
Wisconsin, on December 15, 1999.
ALLIANT ENERGY RESOURCES, INC.
By: /s/ ERROLL B. DAVIS, JR.
------------------------------------
Erroll B. Davis, Jr.
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ERROLL B. DAVIS, JR. Chief Executive Officer and December 15, 1999
- --------------------------------------------- Director (Principal Executive
Erroll B. Davis, Jr. Officer)
/s/ EDWARD M. GLEASON Vice President-Treasurer and December 15, 1999
- --------------------------------------------- Corporate Secretary (Principal
Edward M. Gleason Financial Officer)
/s/ JOHN E. EBRIGHT Vice President-Controller December 15, 1999
- --------------------------------------------- (Principal Accounting Officer)
John E. Ebright
* Director December 15, 1999
- ---------------------------------------------
Alan B. Arends
* Director December 15, 1999
- ---------------------------------------------
Rockne G. Flowers
* Director December 15, 1999
- ---------------------------------------------
Joyce L. Hanes
* Director December 15, 1999
- ---------------------------------------------
Lee Liu
* Director December 15, 1999
- ---------------------------------------------
Katharine C. Lyall
* Director December 15, 1999
- ---------------------------------------------
Arnold M. Nemirow
* Director December 15, 1999
- ---------------------------------------------
Milton E. Neshek
* Director December 15, 1999
- ---------------------------------------------
Jack R. Newman
</TABLE>
II-3
<PAGE> 52
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director December 15, 1999
- ---------------------------------------------
Judith D. Pyle
* Director December 15, 1999
- ---------------------------------------------
Robert D. Ray
* Director December 15, 1999
- ---------------------------------------------
Robert W. Schlutz
* Director December 15, 1999
- ---------------------------------------------
Wayne H. Stoppelmoor
* Director December 15, 1999
- ---------------------------------------------
Anthony R. Weiler
*By: /s/ ERROLL B. DAVIS, JR.
---------------------------------------
Erroll B. Davis, Jr.
Attorney-in-fact
</TABLE>
II-4
<PAGE> 53
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Madison, State of
Wisconsin, on December 15, 1999.
ALLIANT ENERGY CORPORATION
By: /s/ ERROLL B. DAVIS, JR.
------------------------------------
Erroll B. Davis, Jr.
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ERROLL B. DAVIS, JR. President and Chief Executive December 15, 1999
- --------------------------------------------- Officer and Director (Principal
Erroll B. Davis, Jr. Executive Officer)
/s/ THOMAS M. WALKER Executive Vice President and Chief December 15, 1999
- --------------------------------------------- Financial Officer (Principal
Thomas M. Walker Financial Officer)
/s/ JOHN E. EBRIGHT Vice President-Controller December 15, 1999
- --------------------------------------------- (Principal Accounting Officer)
John E. Ebright
* Director December 15, 1999
- ---------------------------------------------
Alan B. Arends
* Director December 15, 1999
- ---------------------------------------------
Rockne G. Flowers
* Director December 15, 1999
- ---------------------------------------------
Joyce L. Hanes
* Director December 15, 1999
- ---------------------------------------------
Lee Liu
* Director December 15, 1999
- ---------------------------------------------
Katharine C. Lyall
* Director December 15, 1999
- ---------------------------------------------
Arnold M. Nemirow
* Director December 15, 1999
- ---------------------------------------------
Milton E. Neshek
* Director December 15, 1999
- ---------------------------------------------
Jack R. Newman
</TABLE>
II-5
<PAGE> 54
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director December 15, 1999
- ---------------------------------------------
Judith D. Pyle
* Director December 15, 1999
- ---------------------------------------------
Robert D. Ray
* Director December 15, 1999
- ---------------------------------------------
Robert W. Schlutz
* Director December 15, 1999
- ---------------------------------------------
Wayne H. Stoppelmoor
* Director December 15, 1999
- ---------------------------------------------
Anthony R. Weiler
*By: /s/ ERROLL B. DAVIS, JR.
---------------------------------------
Erroll B. Davis, Jr.
Attorney-in-fact
</TABLE>
II-6
<PAGE> 55
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
- ------- --------------------
<S> <C>
(4.1) Indenture, dated as of November 4, 1999, among Alliant
Energy Resources, Inc., Alliant Energy Corporation, as
Guarantor, and Firstar Bank, N.A., as Trustee.
(4.2) First Supplemental Indenture, dated as of November 4, 1999,
among Alliant Energy Resources, Inc., Alliant Energy
Corporation, as Guarantor, and Firstar Bank, N.A., as
Trustee.
(4.3) Form of New 7 3/8% Senior Notes due 2009 and related
Guarantees.
(4.4) Purchase Agreement, dated as of November 4, 1999, among
Alliant Energy Resources, Inc., Alliant Energy Corporation,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated, Salomon Smith Barney Inc., ABN
AMRO Incorporated and Barclays Capital Inc.
(4.5) Registration Rights Agreement, dated as of November 9, 1999,
among Alliant Energy Resources, Inc., Alliant Energy
Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, Salomon
Smith Barney Inc., ABN AMRO Incorporated and Barclays
Capital Inc.
(5) Opinion of Foley & Lardner (including consent of counsel).
(12) Statement re computation of ratios of earnings to fixed
charges.
(23.1) Consent of Arthur Andersen LLP
(23.2) Consent of Foley & Lardner (filed as part of Exhibit (5)).
(24) Powers of attorney.
(25) Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Firstar Bank, N.A.
(99.1) Form of Letter of Transmittal.
(99.2) Form of Notice of Guaranteed Delivery.
(99.3) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(99.4) Form of Letter to Clients.
(99.5) Form of Instructions to Registered Holder and/or DTC
Participant from Beneficial Owners.
(99.6) Form of Letter to Nominees.
</TABLE>
E-1
Execution Copy
ALLIANT ENERGY RESOURCES, INC.,
Company,
ALLIANT ENERGY CORPORATION,
as Guarantor
and
FIRSTAR BANK, N.A.,
as Trustee
INDENTURE
DATED AS OF NOVEMBER 4, 1999
Providing for the Issuance of Debt
Securities in Series
of Guaranteed Debt
<PAGE>
ANNOTATED TIE-SHEET
Reconciliation and tie between Indenture dated as of November 4, 1999
and the Trust Indenture Act of 1939. This reconciliation section does not
constitute part of the Indenture.
INDENTURE
TRUST INDENTURE ACT OF 1939 SECTION SECTION
- ---------------------------------------------------------- ---------------------
310(a)(1) Eligibility/Qualification of Trustee 7.10
(a)(2) 7.10
(a)(3) (We don't have Co-trustees) Inapplicable
(b) 7.08, 7.10
(c) 7.10
311(a) Preferential Collection of Claims Against Obligor 7.11
(b) 7.11
(c) Inapplicable
312(a) 2.07, 4.06
(b) 10.04
(c) 10.04
313(a) Reports by Indenture Trustee 7.06,
(b)(1) 7.06(a)
(b)(2) 7.06(a)
(c) 10.03
(d) 7.06(b)
314(a) Reports by Obligor; Evidence of Compliance with
Indenture Provisions Inapplicable
(b) Inapplicable; No
Pledge of Property
(c)(1) 10.05
(c)(2) 10.05
(c)(3) (Accountants/Conditions Precedent) Inapplicable
(d) Fair Value Certificate Inapplicable
(e) 10.06
(f) Inapplicable
315(a) Duties and Responsibility of the Trustee 7.01(b)
(b) 7.05, 10.03
(c) 7.01(a)
(d) 6.05, 7.01(c)
(e) 6.07, 6.11
316(a)(last sentence) Directions and Waivers by
Holders/Right to Payment 2.11
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) Consent to Postponement of Interest Payments Inapplicable
i
<PAGE>
INDENTURE
TRUST INDENTURE ACT OF 1939 SECTION SECTION
- ---------------------------------------------------------- ---------------------
(b) 6.07
(c) 10.02(e)
317(a)(1) Special Powers of Trustee 6.01,6.02,6.03,6.08
(a)(2) 6.09
(b) 2.06
318(a) 11.01
(c) 11.01
ii
<PAGE>
TABLE OF CONTENTS*
Page
----
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions......................................................1
Section 1.02 Other Definitions................................................5
Section 1.03 Incorporation by Reference of Trust Indenture Act................5
Section 1.04 Rules of Construction............................................6
ARTICLE 2. THE SECURITIES
Section 2.01 Issuable in Series...............................................6
Section 2.02 Establishment of Terms and Form of Series of Securities and
Guarantees..................7
Section 2.03 Execution, Authentication, and Delivery.........................10
Section 2.04 Registrar and Paying Agent......................................12
Section 2.05 Payment on Securities...........................................12
Section 2.06 Paying Agent to Hold Money in Trust.............................13
Section 2.07 Securityholder Lists; Ownership of Securities...................14
Section 2.08 Transfer and Exchange...........................................14
Section 2.09 Replacement Securities..........................................16
Section 2.10 Outstanding Securities..........................................17
Section 2.11 Treasury Securities.............................................17
Section 2.12 Temporary Securities............................................18
Section 2.13 Cancellation....................................................18
Section 2.14 Defaulted Interest..............................................19
Section 2.15 Global Securities...............................................19
Section 2.16 Unconditional Guarantee.........................................20
Section 2.17 Execution of Guarantees.........................................21
Section 2.18 Assumption by Guarantor.........................................22
ARTICLE 3. REDEMPTION
Section 3.01 Notice to the Trustee...........................................22
Section 3.02 Selection of Securities to be Redeemed..........................23
Section 3.03 Notice of Redemption............................................23
Section 3.04 Effect of Notice of Redemption..................................24
Section 3.05 Deposit of Redemption Price.....................................24
Section 3.06 Securities Redeemed in Part.....................................24
_______________
* This Table of Contents does not constitute part of this Indenture.
iii
<PAGE>
Page
----
ARTICLE 4. COVENANTS
Section 4.01 Payment of Securities...........................................25
Section 4.02 Maintenance of Office or Agency.................................25
Section 4.03 Limitations on Liens............................................26
Section 4.04 Limitation on Sale and Lease-Back Transactions..................29
Section 4.05 Money for Securities Payments to be Held in Trust...............29
Section 4.06 Company and the Guarantor to Furnish Trustee Names and
Addresses of Holders..........................................31
Section 4.07 Company Statement as to Compliance; Notice of Certain Defaults..31
Section 4.08 Guarantor Statement as to Compliance; Notice of Certain
Defaults......................................................32
Section 4.09 Maintenance of Properties.......................................33
Section 4.10 Insurance.......................................................33
Section 4.11 Existence.......................................................33
Section 4.12 Payment of Taxes and Other Claims...............................33
Section 4.13 Waiver of Certain Covenants.....................................34
ARTICLE 5. CONSOLIDATION, MERGER AND SALES
Section 5.01 Company May Consolidate, etc., Only on Certain Terms............34
Section 5.02 Successor Person Substituted for Company........................35
Section 5.03 Guarantor May Consolidate, etc., Only on Certain Terms..........35
Section 5.04 Successor Person Substituted for Guarantor......................36
Section 5.05 Assumption by Guarantor.........................................36
ARTICLE 6. DEFAULTS AND REMEDIES
Section 6.01 Events of Default...............................................37
Section 6.02 Acceleration....................................................39
Section 6.03 Other Remedies Available to Trustee.............................39
Section 6.04 Waiver of Existing Defaults.....................................39
Section 6.05 Control by Majority.............................................39
Section 6.06 Limitation on Suits by Securityholders..........................40
Section 6.07 Rights of Holders to Receive Payment............................40
Section 6.08 Collection Suits by Trustee.....................................40
Section 6.09 Trustee May File Proofs of Claim................................41
Section 6.10 Priorities......................................................41
Section 6.11 Undertaking for Costs...........................................41
ARTICLE 7. TRUSTEE
Section 7.01 Duties of Trustee...............................................42
Section 7.02 Rights of Trustee...............................................43
Section 7.03 Individual Rights of Trustee....................................43
iv
<PAGE>
Page
----
Section 7.04 Trustee's Disclaimer............................................43
Section 7.05 Notice of Defaults..............................................44
Section 7.06 Reports by Trustee to Holders...................................44
Section 7.07 Compensation and Indemnity......................................44
Section 7.08 Replacement of Trustee..........................................45
Section 7.09 Successor Trustee, Agents by Merger, etc........................47
Section 7.10 Eligibility; Disqualification...................................47
Section 7.11 Preferential Collection of Claims Against the Company...........47
ARTICLE 8. DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Company's and Guarantor's Option to Effect Defeasance or
Covenant Defeasance...........................................48
Section 8.01 Defeasance and Discharge........................................48
Section 8.03 Covenant Defeasance.............................................49
Section 8.04 Conditions to Defeasance or Covenant Defeasance.................49
Section 8.05 Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.........................51
Section 8.06 Reinstatement...................................................52
ARTICLE 9. AMENDMENTS AND WAIVERS; SUPPLEMENTAL INDENTURES
Section 9.01 Without Consent of Holders......................................52
Section 9.02 With Consent of Holders.........................................53
Section 9.03 Execution of Supplemental Indentures............................54
Section 9.04 Effect of Supplemental Indentures...............................55
Section 9.05 Reference in Securities to Supplemental Indentures..............55
Section 9.06 Compliance with Trust Indenture Act.............................55
Section 9.07 Revocation and Effect of Consents...............................55
Section 9.08 Notation on or Exchange of Securities...........................56
Section 9.09 Trustee Protected...............................................56
ARTICLE 10. MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls...................................56
Section 10.02 Acts of Holders................................................56
Section 10.03 Notices........................................................58
Section 10.04 Communication by Holders with Other Holders....................59
Section 10.05 Certificate and Opinion as to Conditions Precedent.............59
Section 10.06 Statements Required in Certificate or Opinion..................59
Section 10.07 Rules by Trustee and Agents....................................60
Section 10.08 Legal Holidays.................................................60
Section 10.09 Governing Law..................................................60
Section 10.10 No Adverse Interpretation of Other Agreements..................60
Section 10.11 No Recourse Against Others.....................................60
v
<PAGE>
Page
----
Section 10.12 Execution in Counterparts......................................60
Section 10.13 Currencies.....................................................61
ARTICLE 11. REPAYMENT AT THE OPTION OF HOLDERS
Section 11.01 Applicability of Article.......................................61
vi
<PAGE>
INDENTURE dated as of November 4, 1999 among ALLIANT ENERGY RESOURCES,
INC., a Wisconsin corporation (the "Company"), ALLIANT ENERGY CORPORATION, a
Wisconsin corporation as guarantor (the "Guarantor"), and FIRSTAR BANK, N.A., as
Trustee (the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes or other evidences of indebtedness
("Securities") (as defined herein) as herein provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture and deems it appropriate from time to time to issue its Guarantees (as
defined herein) of the Securities on the terms herein provided.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the Holders of the
Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company, or
the Guarantor, as the case may be.
"Agent" means any Paying Agent, Registrar or transfer agent as may be
appointed by the Company from time to time.
"Attributable Debt" means, with respect to any particular Sale and
Lease-Back Transaction, at the time of determination, the present value
(discounted at the rate of interest implicit in the transaction determined in
accordance with generally accepted accounting principles) of the obligation of
the lessee for net rental payments during the
<PAGE>
remaining term of the lease included in the Sale and Lease-Back Transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Authorized Newspaper" means a newspaper of general circulation, in
the official language of the country of publication or in the English language,
customarily published on each business day. Whenever successive weekly
publications in an Authorized Newspaper are required hereunder, they may be made
(unless otherwise expressly provided herein) on the same or different days of
the week and in the same or different Authorized Newspapers.
"Board of Directors" mean the Board of Directors of the Company or the
Guarantor, as the case may be, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
or the Guarantor, as the case may be, to have been adopted by the Board of
Directors and to be in full force and effect on the date of the certificate.
"Company" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Company Order" means an order signed by two Officers of the Company.
"Consolidated Net Tangible Assets" is the total of all assets
(including revaluations thereof as a result of commercial appraisals, price
level restatement or otherwise) appearing on the most recent consolidated
balance sheet of the Guarantor as of the date of determination (which balance
sheet shall be the most recent balance sheet filed with the SEC, or if a
revaluation has occurred, the balance sheet prepared in connection with such
revaluation if it is more recent than the most recent balance sheet filed with
the SEC), net of applicable reserves and deductions, but excluding goodwill,
trade names, trademarks, patents, unamortized debt discount and all other like
intangible assets (which term shall not be construed to include such
revaluations), less the aggregate of the consolidated current liabilities of the
Guarantor appearing on such balance sheet.
"Debt" means all of the Company's obligations evidenced by bonds,
debentures, notes or similar evidences of indebtedness in each case for money
borrowed.
"Depositary" means, with respect to Securities of any Series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable
2
<PAGE>
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.02 or 2.15.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means, with respect to any Series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Guarantee" means the agreement of the Guarantor in the form, set
forth in Section 2.16 hereof, to be endorsed on the Securities authenticated and
delivered hereunder.
"Guarantor" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Guarantor Order" means an order signed by two Officers of the
Guarantor.
"Holder" or "Securityholder" means a bearer of an Unregistered
Security or of a coupon appertaining thereto or a person in whose name a
Registered Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time
to time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity, means interest
payable after maturity.
"Lien" means any mortgage, lien, pledge, security interest or other
encumbrance. The term "Lien" does not include any easements, rights-of-way,
restrictions and other similar encumbrances and encumbrances consisting of
zoning restrictions, leases, subleases, licenses, sublicenses, restrictions on
the use of property or defects in the title thereto.
"Officer" means the President, the Chief Executive Officer, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant
Secretary
3
<PAGE>
or the Controller or any Assistant Controller of the Company or the Guarantor,
as the case may be.
"Officers' Certificate" means a certificate signed by two Officers of
the Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Company, the Guarantor and the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02.
"Physical Security" means any Security in permanent and certificated
form.
"Principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on the Security.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest by the Registrar.
"Responsible Officer" when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors or trustees, the
chairman or any vice-chairman of the executive committee of the board of
directors or trustees, the president, any executive vice-president, any senior
vice-president, any vice-president, any assistant vice-president, the treasurer,
the secretary, any trust officer, any second or assistant vice-president, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject.
"Sale and Lease-Back Transaction" means any arrangement with any
entity providing for the lease by the Company of any of the assets that the
Company has sold or transferred or that the Company has agreed to sell or
transfer to that entity.
"SEC" means the Securities and Exchange Commission.
"Series" or "Series of Securities" means a series of Securities.
"Securities" means the debentures, notes or other obligations of the
Company issued, authenticated and delivered under this Indenture.
4
<PAGE>
"Subsidiary" means any corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company and/or by
one or more other Subsidiaries. For purposes of such definition, "voting stock"
means stock ordinarily having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
777aaa-777bbb) as in effect on the date of this Indenture, except as provided in
Section 9.03.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and if, at any time,
there is more than one Trustee, "Trustee" as used with respect to the Securities
of any Series shall mean the Trustee with respect to that Series.
"U.S. Person" means a citizen, national or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, or an
estate or trust which is subject to United States federal income taxation
regardless of its source of income.
"Unregistered Security" means any Security issued hereunder which is
not a Registered Security.
"Yield to Maturity" means the yield to maturity, calculated by the
Company at the time of issuance of a Series of Securities or, if applicable, at
the most recent determination of interest on such Series in accordance with
accepted financial practice.
Section 1.02 OTHER DEFINITIONS.
INDENTURE TERM SECTION
"Act of Holders"....................................10.02
"Defeased Securities"................................8.01
"Event of Default"...................................6.01
"Legal Holiday".....................................10.08
"Paying Agent".......................................2.04
"Registrar"..........................................2.04
"U.S. Government Obligations"........................8.04
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
5
<PAGE>
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and the
Guarantor, if and as long as the Guarantor is liable with respect to any payment
of principal of, premium, if any, and interest on any Security as a result of
the Company's default in the timely payment of any amount due with respect to
any Security.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings assigned to them therein.
Section 1.04 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles;
(3) words in the singular include the plural, and words in
the plural include the singular; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
ARTICLE 2.
THE SECURITIES
Section 2.01 ISSUABLE IN SERIES. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued in one or more Series. There may be
Registered Securities and Unregistered Securities within a Series and the
Unregistered Securities may be subject to such restrictions, and contain such
legends, as may be required by United
6
<PAGE>
States laws and regulations. All Series of Securities shall be equally and
ratably entitled to the benefits of this Indenture.
Section 2.02 ESTABLISHMENT OF TERMS AND FORM OF SERIES OF SECURITIES
AND GUARANTEES.
(a) At or prior to the issuance of any Series of Securities, the
following shall be established by a Company Board Resolution, by one or more
Officers of the Company pursuant to a Company Board Resolution, or by a
supplemental indenture hereto:
(1) the title of the Securities of the Series (which title
shall distinguish the Securities of the Series from the Securities of
any other Series and from any other securities issued by the Company);
(2) any limit upon the aggregate principal amount of the
Securities of the Series which may be authenticated and delivered
under this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of, transfer of, in
exchange for or in lieu of, other Securities of the Series pursuant to
Section 2.08, 2.09, 2.12, 3.06 or 9.08);
(3) the date or dates on which the principal of the
Securities of the Series is payable;
(4) the rate or rates (which may be fixed or variable) at
which the Securities of the Series shall bear interest, if any, or the
manner of determining such rate or rates of interest, the date or
dates from which such interest shall accrue, the dates on which such
interest shall be payable, and, with respect to Registered Securities,
the record date for the interest payable on any interest payment date,
and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of and interest
on Registered and Unregistered, if any, Securities of the Series shall
be payable;
(6) the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Securities of the
Series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the Series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the terms and
7
<PAGE>
conditions upon which, Securities of the Series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(8) if in other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of
the Series shall be issuable;
(9) if other than the principal amount thereof, the portion
of the principal amount of Securities of the Series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02;
(10) whether Securities of the Series shall be issuable as
Registered Securities or Unregistered Securities (with or without
interest coupons), or both, and any restrictions applicable to the
offering, sale or delivery of Unregistered Securities and whether, and
the terms upon which, Unregistered Securities of a Series may be
exchanged for Registered Securities of the same Series and vice versa,
and whether any liquidated damages are to be paid if the Company fails
to file the appropriate registration statements, or fails to have such
registration statements declared effective within a specified time
period;
(11) the form or forms of the Securities (or forms thereof
if Unregistered and Registered Securities shall be issuable in such
Series), including such legends as may be required by United States
laws or regulations, the form of any coupons or temporary Global
Security which may be issued and the forms of any certificates,
opinions or other documents which may be required hereunder or under
United States laws or regulations in connection with the offering,
sale, delivery or exchange of Unregistered Securities;
(12) whether the Securities of the Series are issuable as a
Global Security and, in such case, the identity of the Depositary for
such Series;
(13) if other than such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public or private debts, the coin or currency, including
composite currency, in which payment of the principal of and premium,
if any, or interest on the Securities of the Series shall be payable;
(14) if the principal of or interest on the Securities of
the Series are to be payable, at the election of the Company or a
Holder thereof, in a coin or currency other than that in which the
Securities are stated to be payable, the coin or currency, including
composite currency, in which payment of the principal of and premium,
if any, or interest on Securities of such Series as to which such
8
<PAGE>
election is made shall be payable, the period or periods within which,
and the terms and conditions upon which, such election may be made;
(15) if the amount of payments of principal of or interest
on the Securities of the Series may be determined with reference to an
index based on coin or currency other than that in which the
Securities are stated to be payable, the manner in which such amounts
shall be determined; and
(16) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture), including any
terms which may be required by or advisable under United States laws
or regulations or advisable in connection with the marketing of
Securities of that Series.
(b) All Securities of any one Series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and
maturity and currency and, except as may otherwise be provided in or pursuant to
a Company Board Resolution or a certificate delivered pursuant to Section
2.02(c) or in an indenture supplemental hereto. All Securities of any one Series
need not be issued at the same time, and, unless otherwise provided, a Series
may be reopened for issuances of additional Securities of such Series.
(c) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Company Board Resolution, the Company shall
deliver a copy of such Board Resolution to the Trustee at or prior to the
issuance of such Series with (1) the form or forms of the Securities which have
been approved attached thereto; or (2) if such Board Resolution authorizes
specified Officers to establish the terms and form or forms of the Securities, a
certificate of such Officers or a supplemental indenture signed by such Officers
establishing or providing for the establishment of the terms and form or forms
of the Securities, with such form or forms of the Securities attached to the
certificate or supplemental indenture establishing such form or forms.
(d) Unregistered Securities and their coupons must have substantially
the following statement on their face: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287 of the
Internal Revenue Code of 1986, as amended," or such other statement or
statements as determined by the Company.
(e) At or prior to the issuance of any of the Guarantees, the exact
form and terms of such Guarantees, which shall comply with the terms of Section
2.16 hereof, shall be established by an Officers' Certificate of the Guarantor.
9
<PAGE>
Section 2.03 EXECUTION, AUTHENTICATION, AND DELIVERY.
(a) The Securities shall be executed on behalf of the Company by, and
the Guarantees endorsed thereon shall be executed on behalf of the Guarantor by,
its President, Chief Executive Officer or any Vice President, and by its
Treasurer or an Assistant Treasurer or its Secretary or an Assistant Secretary.
Signatures shall be manual or facsimile. The Company's seal, if any, shall be
reproduced on the Securities and may, but need not, be attested. The Guarantor's
seal, if any, shall be reproduced on the Guarantees and may, but need not, be
attested. The coupons of Unregistered Securities shall bear the facsimile
signature of the Treasurer or an Assistant Treasurer of the Company.
(b) If an Officer whose signature is on a Security, a Guarantee or
coupon no longer holds that office at the time the Security or the Guarantee is
authenticated, the Security, Guarantee or coupon shall be valid nevertheless.
(c) A Security or Guarantee thereon shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent,
and no coupon shall be valid until the Security to which it appertains has been
so authenticated. Such signature shall be conclusive evidence that the Security
has been authenticated under this Indenture. Each Unregistered Security shall be
dated the date of its authentication.
(d) The Trustee (or an authenticating agent appointed pursuant to
Section 2.03(f)) shall at any time, and from time to time, authenticate and
deliver Securities of any Series executed and delivered by the Company with
Guarantees endorsed thereon for original issue in an unlimited aggregate
principal amount, upon receipt by the Trustee (or an authentication agent) of
(i) a Company Order or directions pursuant to such a Company Order for the
authentication and delivery of such Securities; (ii) if the terms and form or
forms of the Securities of such Series have been established by or pursuant to a
Board Resolution or supplemental indenture as permitted pursuant to Section
2.02, a copy of such Board Resolution and any certificate or supplemental
indenture that may be required pursuant to Section 2.02(c); (iii) if the terms
and form or forms of the Securities of such Series have been otherwise
established by or pursuant to a supplemental indenture, a copy of such duly
executed supplemental indenture and any documents required by such supplemental
indenture; (iv) an Officers' Certificate of the Guarantor establishing the terms
of the Guarantees; and (v) an Opinion of Counsel stating substantially:
(1) if the form of such Securities has been established by
or pursuant to a Board Resolution as permitted by Section 2.02, that
such form has been established in conformity with provisions of this
Indenture;
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(2) if the terms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 2.02, that
such terms have been established, or provision has been made for their
establishment, in conformity with the provisions of this Indenture;
and
(3) that such Securities and Guarantees, when authenticated
and delivered by the Trustee (or an authenticating agent) and issued
by the Company or the Guarantor, as applicable, in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company or the
Guarantor, as applicable, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles and subject to the
enforcement of certain provisions thereof which may be limited by the
laws of the State of Wisconsin, but the inclusion of such provisions
does not affect the validity of the Securities or the Guarantees, as
the case may be, contain legally adequate provisions for the
realization of the principal legal rights and benefits offered
thereby.
If the terms and form or forms of such Securities have been
established by or pursuant to a Board Resolution as permitted by Section 2.02,
the Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will materially and adversely
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the foregoing, until the Company has notified the
Trustee and the Registrar that, as a result of the action described, the Company
would not suffer adverse consequences under the provisions of United States law
or regulations in effect at the time of the delivery of Unregistered Securities,
(i) delivery of Unregistered Securities will be made only outside the United
States and its possessions, and (ii) Unregistered Securities will be released in
definitive form to the person entitled to physical delivery thereof only upon
presentation of a certificate in the form prescribed by the Company.
(e) The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution (or certificate of an
Officer or Officers) or supplemental indenture pursuant to Section 2.02 or in
any additional Board Resolution or supplemental indenture which shall reopen a
Series of Securities pursuant to Section 2.02.
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(f) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
Section 2.04 REGISTRAR AND PAYING AGENT. The Company shall maintain
for each Series of Securities an office or agency where Registered Securities
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where (subject to Sections 2.05 and 2.08) Securities may be
presented for payment ("Paying Agent"). With respect to any Series of Securities
issued in whole or in part as Unregistered Securities, the Company shall
maintain one or more Paying Agents located outside the United States and its
possessions and shall maintain such Paying Agents for a period of two years
after the principal of such Unregistered Securities has become due and payable.
During any period thereafter for which it is necessary in order to conform to
United States tax law or regulations, the Company will maintain a Paying Agent
outside the United States and its possessions to which the Unregistered
Securities or coupons appertaining thereto may be presented for payment and will
provide the necessary funds therefor to such Paying Agent upon reasonable
notice. The Registrar shall keep a register with respect to each Series of
Securities issued in whole or in part as Registered Securities and as to their
transfer and exchange. The Company may appoint one or more co-Registrars and one
or more additional Paying Agents for each Series of Securities and the Company
may terminate the appointment of any co-Registrar. The term "Paying Agent"
includes any additional Paying Agent. The Company shall notify the Trustee of
the name and address of any Agent not a party to this Indenture. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such.
Section 2.05 PAYMENT ON SECURITIES.
(a) Subject to the following provisions, the Company will pay to the
Trustee or the Paying Agent the amounts, in such coin or currency as is at the
time legal tender for the payment of public or private debt, at the times and
for the purposes set forth herein and in the text of the Securities Series, and
the Company hereby authorizes and directs the Trustee or the Paying Agent, from
funds so paid to it, to make or cause to be made payment of the principal of,
interest and premium, if any, on the Securities and coupons of each Series as
set forth herein and in the text of such Securities and coupons. The Trustee
will arrange directly with any Paying Agent for the payment, or the Trustee will
make payment, from funds furnished by the Company, of the principal of, interest
and premium, if any, on the Securities and coupons of each Series by check drawn
upon a bank specified by the Company and acceptable to the Trustee.
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(b) Interest, if any, on Registered Securities of a Series shall be
paid on each interest payment date for such Series to the Holder thereof at the
close of business on the relevant record dates specified in the Securities of
such Series. The Company may pay such interest by check mailed to such Holder's
address as it appears on the register for Securities of such Series. Principal
of Registered Securities shall be payable only against presentation and
surrender thereof at the office of the Paying Agent in Milwaukee, Wisconsin or
New York, New York unless the Company shall have otherwise instructed the
Trustee in writing.
(c) To the extent provided in the Securities of a Series, (i)
interest, if any, on Unregistered Securities shall be paid only against
presentation and surrender of the coupons for such interest installments as are
evidenced thereby as they mature; and (ii) original issue discount (as defined
in Section 1273 of the Internal Revenue Code of 1986, as amended), if any, on
Unregistered Securities shall be paid only against presentation and surrender of
such Securities; in either case at the office of a Paying Agent located outside
of the United States and its possessions. Principal of Unregistered Securities
shall be paid only against presentation and surrender thereof as provided in the
Securities of a Series. If at the time a payment of principal of or interest, if
any, or original issue discount, if any, on an Unregistered Security or coupon
shall become due, the payment of the full amount so payable at the office or
offices of all the Paying Agents outside the United States and its possessions
is illegal or effectively precluded because of the imposition of exchange
controls or other similar restrictions on the payment of such amount in United
States currency, then the Company will instruct the Trustee in writing as to how
and when such payment will be made and may instruct the Trustee to make such
payments at the office of a Paying Agent located in the United States, provided
that the Company has determined that provision for such payment in the United
States would not cause such Unregistered Security to be treated as a
"registration-required obligation" under United States laws and regulations.
Unless otherwise instructed in writing by the Company, no payments of interest,
original issue discounts or principal with respect to Unregistered Securities
shall be made by a Paying Agent (i) by transfer of funds into an account
maintained by the payee in the United States, (ii) mailed to an address in the
United States or (iii) paid to a United States address by electronic funds
transfer.
Section 2.06 PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust, for the benefit of Securityholders of any or
all Series of Securities, or the Trustee, all money held by the Paying Agent for
the payment of principal or interest on such Series of Securities, and that the
Paying Agent will notify the Trustee of any default by the Company (or any other
obligor on the Securities) in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate the money held by it for the payment of principal or
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interest on any Series of Securities and hold such money as a separate trust
fund. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee. Upon so doing, the Paying Agent shall have no further
liability for the money so paid. The Trustee or the Paying Agent may allow and
credit to the Company (or any other obligor on the Securities) interest on any
monies received by it hereunder at such rate as may be agreed upon with the
Company (or any other obligor on the Securities) from time to time and as may be
permitted by law.
Section 2.07 SECURITYHOLDER LISTS; OWNERSHIP OF SECURITIES.
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of each Series of Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee semiannually on or before the last day of
June and December in each year, and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require, containing all the information in the possession or control
of the Registrar, the Company, the Guarantor or any of the Paying Agents other
than the Trustee as to the names and addresses of Holders of each such Series of
Securities.
(b) Ownership of Registered Security of a Series shall be proved by
the register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities, or
by a certificate or affidavit executed by the person holding such Unregistered
Securities, or by a depository with whom such Unregistered Securities were
deposited if the certificate or affidavit is satisfactory to the Trustee. The
Company, the Trustee, the Guarantor and any agent of the Company may treat the
bearer or any Unregistered Security or coupon and the person in whose name a
Registered Security is registered as the absolute owner thereof for all
purposes.
Section 2.08 TRANSFER AND EXCHANGE.
(a) Where Registered Securities of a Series are presented to the
Registrar with a request to register their transfer or to exchange them for an
equal principal amount of Registered Securities of the same Series containing
identical terms and provisions and date of maturity of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met.
(b) If both Registered and Unregistered Securities are authorized for
a Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered
Securities containing identical terms and provisions of the same Series and date
of maturity in any authorized
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denominations upon delivery to the Registrar of the Unregistered Security with
all unmatured coupons and all matured coupons in default appertaining thereto
and if all other requirements of the Registrar and such Securities for such
exchange are met, and (ii) Registered Securities may be exchanged for an equal
principal amount of Unregistered Securities of the same Series and date of
maturity in any authorized denominations (except that any coupons appertaining
to such Unregistered Securities which have matured and have been paid shall be
detached) upon delivery to the Registrar of the Registered Securities and if all
other requirements of the Registrar (or such Paying Agent) and such Securities
for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities
for Registered Securities or Registered Securities for Unregistered Securities
will be subject to the satisfaction of the provisions of United States laws and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the Company
has notified the Trustee and the Registrar that, as a result of such exchange,
neither the Company nor the Guarantor would suffer adverse consequences under
the provisions of United States laws or regulations.
(c) To permit registrations of transfers and exchanges the Trustee (or
an authenticating agent) shall authenticate Securities upon instructions of the
Registrar or, if applicable, a Paying Agent upon surrender of Securities for
registration of transfer or for exchange as provided in this Section. The
Company will not make any charge for any registration of transfer or exchange
but may require the payment by the party requesting such registration of
transfer or exchange of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
(d) Neither the Company nor the Registrar shall be required (i) to
issue, register the transfer of or exchange Securities of any Series for the
period of 15 days immediately preceding the selection of any such Securities to
be redeemed, or (ii) to register the transfer of or exchange Securities of any
Series selected, called or being called for redemption as a whole or the portion
being redeemed of any such Securities selected, called or being called for
redemption in part.
(e) Unregistered Securities or any coupons appertaining thereto shall
be transferable by delivery.
Section 2.09 REPLACEMENT SECURITIES.
(a) If a mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee (or an authenticating agent),
the Company shall issue (with the Guarantee thereon executed by the Guarantor)
and the Trustee (or an authenticating agent) shall authenticate a replacement
Registered Security, if such surrendered security was a Registered Security, or
a replacement Unregistered Security
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with coupons corresponding to the coupons appertaining to the surrendered
Security, if such surrendered Security was an Unregistered Security of the same
Series and containing identical terms and provisions, if the Trustee's (or
authenticating agent's) requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall issue (with the Guarantee thereon executed by the Guarantor) and the
Trustee (or an authenticating agent), shall authenticate a replacement
Registered Security, if such Holder's claim pertains to a Registered Security,
or a replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security or
the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Holder's claim pertains to an Unregistered Security,
of the same Series and containing identical terms and provisions, if the
Trustee's requirements are met; provided, however, that the Trustee (or an
authenticating agent), the Company or the Guarantor may require any such Holder
to provide to the Trustee, the Company and the Guarantor security or indemnity
sufficient in the judgment of the Company, the Guarantor and the Trustee (or an
authenticating agent) to protect the Company, the Guarantor, the Trustee (or an
authenticating agent) and any Agent from any loss which any of them may suffer
if a Security is replaced. The Company, the Guarantor and the Trustee (or an
authenticating agent) may charge the party requesting a replacement Security for
its expenses in replacing a Security.
(c) Every replacement Security is an additional obligation of the
Company. Every replacement Guarantee is an additional obligation of the
Guarantor.
(d) Notwithstanding anything to the contrary contained herein,
replacement Securities need not be issued in any of the circumstances described
in Section 2.09 if the Company, the Guarantor or the Trustee (or an
authenticating agent) have notice that the mutilated, lost, destroyed or
wrongfully taken Security has been acquired by a bona fide purchaser.
Section 2.10 OUTSTANDING SECURITIES.
(a) Securities outstanding at any time are all Securities
authenticated by the Trustee (or an authenticating agent), except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to
be outstanding until the Trustee (or an authenticating agent), receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser.
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(c) If the Paying Agent holds on a redemption date or maturity date
money or U.S. Government Obligations sufficient to pay all amounts due on
Securities of any Series on that date, then on and after that date, all
Securities of such Series cease to be outstanding and interest on them ceases to
accrue.
(d) A Security does not cease to be outstanding because the Company,
the Guarantor or an Affiliate of either of them holds the Security.
(e) In determining whether the Holders of the requisite principal
amount of outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.02;
and (ii) the principal amount of any security denominated in a currency other
than United States dollars that shall be deemed to be outstanding for such
purposes shall be that amount of United States dollars that could be obtained
for such amount on such reasonable basis of exchange and as of the record date
for such determination or action (or, if there shall be no applicable record
date, such other date reasonably proximate to the date of such determination or
action), in each case, as the Company shall specify in a written notice to the
Trustee.
Section 2.11 TREASURY SECURITIES. In determining whether the Holders
of the requisite principal amount of Securities of any Series have concurred in
any direction, waiver or consent, Securities of such Series owned by the
Company, the Guarantor or an Affiliate of either of them shall be disregarded,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
of such Series which the Trustee knows are so owned shall be so disregarded.
Section 2.12 TEMPORARY SECURITIES.
(a) Until definitive Registered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Registered Securities of such Series having duly executed Guarantees
endorsed thereon. Temporary Registered Securities of any Series shall be
substantially in the form of definitive Registered Securities of such Series but
may have variations that the Company and the Guarantor considers appropriate for
temporary Securities. Every temporary Registered Security shall be executed by
the Company, guaranteed by the Guarantor, authenticated by the Trustee and
registered by the Registrar, upon the same conditions, and with like effect, as
a definitive Registered Security. Without
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unreasonable delay, the Company and the Guarantor shall prepare and the Trustee
shall authenticate definitive Registered Securities of the same Series and
containing identical terms and provisions in exchange for temporary Registered
Securities.
(b) Until definitive Unregistered Securities of any Series are ready
for delivery, the Company may prepare and execute and the Trustee shall
authenticate one or more temporary Unregistered Securities, which may have
coupons attached or which may be in the form of a single temporary global
Unregistered Security of that Series. The temporary Unregistered Security or
Securities of any Series shall be substantially in the form approved by or
pursuant to a Board Resolution or a supplemental indenture and shall be
delivered to one of the Paying Agents located outside the United States and its
possessions or to such other person or persons as the Company shall direct
against such certification as the Company may from time to time prescribe by or
pursuant to a Board Resolution or a supplemental indenture. The temporary
Unregistered Security or Securities of a Series shall be executed by the Company
and the Guarantor and authenticated by the Trustee, upon the same conditions,
and with like effect, as a definitive Unregistered Security of such Series,
except as provided herein or therein. A temporary Unregistered Security or
Securities shall be exchangeable for definitive Unregistered Securities
containing identical terms and provisions at the time and on the conditions, if
any, specified in the temporary Security.
Upon any exchange of a part of a temporary Unregistered Security of a
Series for definitive Unregistered Securities of such Series, the temporary
Unregistered Security shall be endorsed by the Trustee or Paying Agent to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of definitive Unregistered Securities of such Series
so exchanged and endorsed.
Section 2.13 CANCELLATION. The Company or the Guarantor at any time
may deliver Securities and coupons to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Securities and
coupons surrendered to them for registration of transfer, for exchange or for
payment. Except as otherwise required by this Indenture, the Trustee shall
cancel all Securities and coupons surrendered for registration of transfer, or
for exchange, payment or cancellation and will dispose of canceled Securities
and coupons as the Company directs; provided, however, that any Unregistered
Securities of a Series delivered to the Trustee for exchange prior to maturity
shall be retained by the Trustee for reissue as provided herein or in the
Securities of such Series. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.14 DEFAULTED INTEREST. If the Company or the Guarantor
defaults on a payment of interest on a Series of Securities, either of them
shall pay the defaulted interest as provided in such Securities or in any lawful
manner not
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inconsistent with the requirements of any securities exchange on which such
Securities may be listed.
Section 2.15 GLOBAL SECURITIES.
(a) If the Company shall establish pursuant to Section 2.02 that the
Securities of a particular Series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.03, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the outstanding Securities of such Series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend substantially to the following effect: "Except as otherwise
provided in Section 2.15 of the Indenture, this Security may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.08, the Global
Security of a Series may be transferred, in whole but not in part and in the
manner provided in Section 2.08, only to another nominee of the Depositary for
such Series, or to a successor Depositary for such Series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a Series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such Series or if at any time the Depositary for such Series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such Series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.15 shall
no longer be applicable to the Securities of such Series and the Company will
execute, and subject to Section 2.08, the Trustee will authenticate and deliver
the Securities of such Series, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such
Series in exchange for such Global Security. In addition, the Company may at any
time determine that the Securities of any Series shall no longer be represented
by a Global Security and that the provisions of this Section 2.15 shall no
longer apply to the Securities of such Series. In such event the Company will
execute and subject to Section 2.08, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such Series, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such Series in exchange for such Global Security. Upon the exchange of the
Global Security for such Securities in authorized denominations, the Global
Security shall be
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canceled by the Trustee. Such Securities issued in exchange for the Global
Security pursuant to this Section 2.15(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Depositary for
delivery to the persons in whose names such Securities are so registered.
Section 2.16 UNCONDITIONAL GUARANTEE.
(Form of Guarantee)
FOR VALUE RECEIVED, the Guarantor, hereby unconditionally guarantees
to the Holder of the Security upon which this Guarantee is endorsed the due and
punctual payment of the principal of, sinking funds payment, if any, premium, if
any, or interest on said Security, when and as the same shall be become due and
payable, whether at maturity, upon redemption or otherwise, according to the
terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to
the date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, or interest on said Security is due and payable, whether the
Company has available the funds to make such payment as the same shall become
due and payable. In case of the failure of the Company punctually to pay any
such principal, sinking fund payment, if any, premium, if any, or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at maturity, upon redemption
or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable and absolute, irrespective of the validity,
regularity or enforceability of said Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of said
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to said Security or indebtedness evidenced
thereby, and all demands whatsoever and covenants that this Guarantee will not
be discharged except by complete performance of the obligations contained in
said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of said
Security against the Company in respect to any amounts paid by the Guarantor
pursuant
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to the provisions of this Guarantee; provided, however, that the Guarantor shall
not, without the consent of the Holders of all of the Securities then
outstanding, be entitled to enforce or to receive any payments arising out of or
based upon such right of subrogation until the principal of and premium, if any,
and interest on all Securities shall have been paid in full or payment thereof
shall have been provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal or interest by the Company on the Securities
to the Holders of the Securities it is determined by a final decision of a court
of competent jurisdiction that such payment shall be avoided by a trustee in
bankruptcy (including any debtor-in-possession) as a preference under 11 U.S.C.
Section 547 and such payment is paid by such Holder to such trustee in
bankruptcy, then and to the extent of such repayment the obligations of the
Guarantor hereunder shall remain in full force and effect.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Security until a certificate of authentication on such
Security shall have been signed by the Trustee (or the authenticating agent).
This Guarantee shall be governed by the laws of the State of
Wisconsin.
IN WITNESS WHEREOF, ALLIANT ENERGY CORPORATION has caused this
Guarantee to be signed in its corporate name by the facsimile signature of two
of its officers thereunto duly authorized and has caused a facsimile of its
corporate seal, if any, to be affixed hereto or imprinted or otherwise
reproduced hereon.
Section 2.17 EXECUTION OF GUARANTEES. To evidence the Guarantee to the
Securityholders specified in Section 2.16, the Guarantor hereby agrees to
execute the Guarantees, in substantially the form above recited, to be endorsed
on each Security authenticated and delivered by the Trustee (or the
authentication agent). Each such Guarantee shall be signed on behalf of the
Guarantor as set forth in Section 2.03 prior to the authentication of the
Security on which it is endorsed, and the delivery of such Security by the
Trustee (or the authenticating agent), after the authentication thereof
hereunder, shall constitute due delivery of such Guarantee on behalf of the
Guarantor.
Section 2.18 ASSUMPTION BY GUARANTOR.
(a) The Guarantor may, without the consent of the Securityholders,
assume all of the rights and obligations of the Company hereunder with respect
to a Series of Securities and under the Securities of such Series if, after
giving effect to such assumption, no Default or Event of Default shall have
occurred and be continuing. Upon such an assumption, the Guarantor shall execute
a supplemental indenture evidencing its assumption of all such rights and
obligations of the Company and the Company shall be
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released from its liabilities hereunder and under such Securities as obligor on
the Securities of such Series.
(b) The Guarantor shall assume all of the rights and obligations of
the Company hereunder with respect to a Series of Securities and under the
Securities of such Series if, upon a default by the Company in the due and
punctual payment of the principal, sinking fund payment, if any, premium, if
any, or interest on such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under Section 2.16
with respect to such Series of Securities. Such assumption shall result in the
Securities of such Series becoming the direct obligations of the Guarantor and
shall be effected without the consent of the Holders of the Securities of any
Series. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption of all such rights and obligations of the
Company, and the Company shall be released from its liabilities hereunder and
under such Securities as obligor on the Securities of such Series.
ARTICLE 3.
REDEMPTION
Section 3.01 NOTICE TO THE TRUSTEE. The Company may, with respect to
any Series of Securities, reserve the right to redeem and pay the Series of
Securities or any part thereof, or may covenant to redeem and pay the Series of
Securities or any part thereof, before maturity at such time and on such terms
as provided for in such Securities. The election of the Company to redeem any
Securities shall be evidenced by a Company Order. In case of any redemption at
the election of the Company of all or less than all of the Securities of any
Series with the same issue date, interest rate and stated maturity, the Company
shall, at least 60 days prior to the redemption date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such redemption date and of the principal amount and redemption price
of Securities of such Series to be redeemed.
Section 3.02 SELECTION OF SECURITIES TO BE REDEEMED. If less than all
the Securities of any Series with the same issue date, interest rate, and stated
maturity are to be redeemed, the particular Securities to be redeemed shall be
selected, not more than 60 days prior to the redemption date, by the Trustee
from the outstanding Securities of such Series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions of the principal
amount of Securities of such Series; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security of
such Series not redeemed to less than the minimum denomination for a
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Security of that Series established pursuant to Section 2.02. The Trustee shall
promptly notify the Company in writing of the Securities selected for redemption
by it and, in the case of any Securities selected for partial redemption, the
amount thereof to be redeemed.
Section 3.03 NOTICE OF REDEMPTION.
(a) At least 30 days, but not more than 60 days before a redemption
date, unless a shorter period is specified in the Securities to be redeemed, the
Company shall mail a notice of redemption by first-class mail to each Holder of
Registered Securities that are to be redeemed.
(b) If Unregistered Securities are to be redeemed, notice of
redemption shall be published in an Authorized Newspaper in the City of New York
once in each of four successive calendar weeks, the first publication to be not
less than 30 nor more than 90 days before the redemption date.
(c) All notices shall identify the Series of Securities to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a Series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities of the Series called for redemption and
all unmatured coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the redemption price; and
(6) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
If the Company gives the notice of redemption, the Company shall
promptly provide the Trustee with evidence satisfactory to the Trustee of its
compliance with the notice requirements of this section.
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Section 3.04 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is mailed or published, Securities of a Series called for redemption become due
and payable on the redemption date and from and after such date (unless the
Company shall default in the payment of the redemption price) such Securities
shall cease to bear interest and the Holders of such Securities shall have no
rights with respect to the Securities except the right to receive the redemption
price. Upon surrender to the Paying Agent of such Securities together with all
unmatured coupons, if any, appertaining thereto, such Securities shall be paid
at the redemption price plus accrued interest to the redemption date, but
installments of interest due on or prior to the redemption date will be payable,
in the case of Unregistered Securities, to the bearers of the coupons for such
interest upon surrender thereof, and, in the case of Registered Securities, to
the Holders of such Securities of record at the close of business on the
relevant record dates.
Section 3.05 DEPOSIT OF REDEMPTION PRICE. On or before the redemption
date, the Company shall deposit with the Trustee or the Paying Agent money
sufficient to pay the redemption price of and (unless the redemption date shall
be an interest payment date) interest accrued to the redemption date on all
Securities to be redeemed on that date.
Section 3.06 SECURITIES REDEEMED IN PART. Upon surrender of a Security
that is redeemed in part, the Company shall issue and the Trustee or the
authenticating agent shall authenticate for the Holder of that Security a new
Security or Securities of the same Series, the same form and the same maturity
in authorized denominations equal in aggregate principal amount to the
unredeemed portion of the Security surrendered and having endorsed thereon a
duly executed Guarantee.
ARTICLE 4.
COVENANTS
Section 4.01 PAYMENT OF SECURITIES.
(a) The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided herein and in the Securities.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment.
(b) The Company shall pay interest on overdue principal of a Security
of any Series at the rate of interest (or Yield to Maturity in the case of
Original Issue Discount Securities) borne by such Security of that Series; to
the extent lawful, it shall pay interest on overdue installments of interest at
the same rate.
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Section 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company and the Guarantor shall maintain an office or agency where
Securities may be presented or surrendered for payment. The Company and the
Guarantor also will maintain in The City of New York an office or agency where
Securities may be surrendered for registration of transfer, redemption or
exchange and where notices and demands to or upon the Company and the Guarantor
in respect of the Securities and this Indenture may be served. The Company or
the Guarantor will give prompt written notice to the Trustee of the location and
any change in the location of any such offices or agencies. If at any time the
Company or the Guarantor shall fail to maintain any such required offices or
agencies or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
office of the Trustee and the Company or the Guarantor hereby appoints the
Trustee such agent as its agent to receive all such presentations, surrenders,
notices and demands.
The Company or the Guarantor may from time to time designate one or
more other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes, and may
from time to time rescind such designation. The Company or the Guarantor will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such office or agency.
Section 4.03 LIMITATIONS ON LIENS.
The Company shall not, and shall not permit any Subsidiary to issue,
assume or guarantee any Debt if the Debt is secured by any Lien upon any of its
property or assets (other than cash), without effectively securing the
outstanding Securities (together with any other indebtedness or obligation then
existing or thereafter created ranking equally with such Securities) equally and
ratably with the Debt. This limitation does not apply to:
(a) Liens in existence on the date of original issuance of
the Securities;
(b) (i) any Lien created or arising over any property or
assets which the Company or a Subsidiary acquires, constructs or
creates, but only if (A) such Lien secures only principal amounts (not
exceeding the cost of the acquisition, construction or creation) of
Debt incurred for the purposes of the acquisition, construction or
creation, together with any costs, expenses, interest and fees
incurred in connection with the acquisition, construction or creation
or a guarantee given in connection with the acquisition, construction
or creation, (B) the Lien is created or arises on or before 90 days
after the completion of the
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acquisition, construction or creation and (C) the Lien is confined
solely to the property or assets so acquired, constructed or created;
or (ii) any Lien to secure the Debt incurred by the Company or a
Subsidiary in connection with a specifically identifiable project
where the Lien relates and is confined to a property or properties
(including, without limitation, shares or other rights of ownership in
the entities which own such property or project) involved in such
project and acquired by the Company or a Subsidiary after the date of
original issuance of the Securities and the recourse of the creditors
in respect of the Debt is limited to any or all of such project and
property (including as aforesaid);
(c) any Lien securing amounts not more than 90 days overdue
or otherwise being contested in good faith;
(d) (i) rights of financial institutions to offset credit
balances in connection with the operation of cash management programs
established for the Company's or any Subsidiary's benefit or in
connection with the issuance of letters of credit for the Company's or
any Subsidiary's benefit;
(ii) any Lien security Debt incurred by the Company or any
Subsidiary in connection with the financing of accounts receivable;
(iii) any Lien incurred or deposits made in the ordinary
course of business, including, but not limited to, (A) any mechanics',
materialmen's, carriers', workmen's, vendors' or other like Liens and
(B) any Liens securing amounts in connection with workers'
compensation, unemployment insurance and other types of social
security;
(iv) any Lien upon specific items of the Company's or any
Subsidiary's inventory or other goods and proceeds securing the
Company's or any Subsidiary's obligations in respect of bankers'
acceptances issued or created to facilitate the purchase, shipment or
storage of such inventory or other goods;
(v) any Lien incurred or deposits made securing the
performance of tenders, bids, leases, trade contracts (other than for
borrowed money), statutory obligations, surety bonds, appeal bonds,
government contracts, performance bonds, return-of-money bonds and
other obligations of like nature incurred by the Company or any
Subsidiary in the ordinary course of business;
(vi) any Lien constituted by a right of set off or right
over a margin call account or any form of cash or cash collateral or
any similar arrangement for obligations incurred by the Company or any
Subsidiary in respect of the hedging or management of risks under
transactions involving any currency or interest rate swap, cap or
collar arrangements, forward exchange transaction, option, warrant,
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forward rate agreement, futures contract or other derivative
instrument of any kind;
(vii) any Lien arising out of title retention or like
provisions in connection with the purchase of goods and equipment by
the Company or any Subsidiary in the ordinary course of business; and
(viii) any Lien securing reimbursement obligations under
letters of credit, guarantees and other forms of credit enhancement
given in connection with the purchase of goods and equipment by the
Company or any Subsidiary in the ordinary course of business;
(e) (i) Liens on any property or assets acquired from an
entity which is merged with or into the Company or any Subsidiary and
is not created in anticipation of any such transaction (unless the
Lien was created to secure or provide for the payment of any part of
the purchase price of the entity to be acquired) and (ii) any Lien on
any property or assets existing at the time of acquisition by the
Company or any Subsidiary and which is not created in anticipation of
the acquisition (unless the Lien was created to secure or provide for
the payment of any part of the purchase price of the property or
assets so acquired);
(f) (i) Liens required by any contract or statute in order
to permit the Company or any Subsidiary to perform any contract or
subcontract made by it with or at the request of a governmental entity
or any department, agency or instrumentality of a governmental entity,
or to secure partial, progress, advance or any other payments by the
Company or any Subsidiary to a governmental unit under the provisions
of any contract or statute; (ii) any Lien securing industrial revenue,
development or similar bonds issued by the Company or any Subsidiary
or for its respective benefit, provided that the industrial revenue,
development or similar bonds are nonrecourse to the Company and/or the
applicable Subsidiary; and (iii) any Lien securing taxes or
assessments or other applicable governmental charges or levies;
(g) (i) any Lien which arises under any order of attachment,
distraint or similar legal process arising in connection with court
proceedings and any Lien which secures the reimbursement obligation
for any bond obtained in connection with an appeal taken in any court
proceeding, so long as the execution or other enforcement of the Lien
arising in connection with such legal process is effectively stayed
and the claims secured by the Lien are being contested in good faith
and, if appropriate, by appropriate legal proceedings, or any Lien in
favor of a plaintiff or defendant in any action before a court or
tribunal as security for costs
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or expenses; or (ii) any Lien arising by operation of law or by order
of a court or tribunal or any Lien arising by an agreement of similar
effect, including, without limitation, judgment liens; or
(h) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Liens referred to in clauses (a) through (g) above, for amounts not
exceeding the principal amount of the Debt secured by the Lien so
extended, renewed or replaced, so long as the extension, renewal or
replacement Lien is limited to all or a part of the same property or
assets that were covered by the Lien that was extended, renewed or
replaced (plus improvements on such property or assets);
provided, however, the Company or any Subsidiary may create or permit to subsist
Liens over any of the Company's or Subsidiary's property or assets so long as
the aggregate amount of Debt secured by all Liens that the Company or any
Subsidiary incurs (excluding the amount of Debt secured by Liens set forth in
clauses (a) through (h) above) does not exceed 10% of the Guarantor's
Consolidated Net Tangible Assets.
Section 4.04 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The
Company shall not enter into any Sale and Lease-Back Transaction unless:
(i) such transaction involves a lease for a temporary period
not to exceed three years;
(ii) such transaction is between the Company and an
Affiliate;
(iii) the Company is entitled to incur Debt secured by a
Lien on the assets or property involved in the Sale and Lease-Back
Transaction at least equal to the Attributable Debt with respect to
the Sale and Lease-Back Transaction, without equally and ratably
securing the Securities;
(iv) the Company enters into the Sale and Lease-Back
Transaction within 270 days after its initial acquisition of the
assets or property subject to the Sale and Lease-Back Transaction;
(v) the aggregate amount of all Attributable Debt with
respect to all Sale and Lease-Back Transactions then in effect does
not exceed 10% of the Guarantor's Consolidated Net Tangible Assets; or
(vi) within 12 months preceding the sale or transfer or 12
months following the sale or transfer, regardless of whether the
Company makes any such sale or transfer, the Company applies, in the
case of a sale or transfer for cash, an
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amount equal to the net proceeds of the sale or transfer and, in the
case of a sale or transfer other than for cash, an amount equal to the
fair value of the assets so leased at the time that the Company enters
into such arrangement (as determined by the Board of Directors of the
Company), (a) to the retirement of Debt, incurred or assumed by the
Company which by its terms matures at, or is extendible or renewable
at the option of the obligor to, a date more than 12 months after the
date of incurring, assuming or guaranteeing such Debt or (b) to an
investment in any of the Company's assets.
Section 4.05 Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any Series
of Securities, it shall, on or before each due date of the principal of, any
premium or interest on any of the Securities of such Series, segregate and hold
in trust for the benefit of the persons entitled thereto a sum in the currency
or currencies, currency unit or units or composite currency or currencies in
which the Securities of such Series are payable (except as otherwise specified
pursuant to Section 2.02 for the Securities of such Series) sufficient to pay
the principal or any premium or interest so becoming due until such sums shall
be paid to such persons or otherwise disposed of as herein provided, and shall
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
Series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on any Securities of such Series, deposit with any
Paying Agent a sum (in the currency or currencies, currency unit or units or
composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal or any premium or interest so becoming due, such
sum to be held in trust for the benefit of the persons entitled thereto, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any Series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of, any premium or interest on Securities of such Series in
trust for the benefit of the persons entitled thereto until such sums
shall be paid to such persons or otherwise disposed of as provided in
or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company or
the Guarantor (or any other obligor upon the Securities of such
Series) in the making
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of any payment of principal, any premium or interest on the Securities
of such Series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company or the Guarantor may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order or Guarantor Order, as the case may be, direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same terms as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, any premium or interest on any
Security of any Series and remaining unclaimed for two years after such
principal or any such premium or interest shall have become due and payable
shall be paid to the Company by Company Order (or if deposited by the Guarantor,
paid to the Guarantor by Guarantor Order), or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company or the
Guarantor, as the case may be, for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in each place of payment for such Series or to be mailed to
Holders of Registered Securities of such Series, or both, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing nor shall it be
later than two years after such principal and any premium or interest shall have
become due and payable, any unclaimed balance of such money then remaining will
be repaid to the Company or the Guarantor, as the case may be.
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Section 4.06 Company and the Guarantor to Furnish Trustee Names and
Addresses of Holders. In accordance with Section 312(a) of the TIA, the Company
and the Guarantor shall furnish or cause to be furnished to the Trustee:
(1) semi-annually with respect to Securities of each Series,
a list, in each case in such form as the Trustee may reasonably
require, of the names and addresses of Holders as of the applicable
date; and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company or the
Guarantor of any such request, a list of similar form and content as
of a date not more than 15 days prior to the time such list is
furnished;
provided, however, that so long as the Trustee is the Registrar, no such list
shall be required to be furnished.
Section 4.07 COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement (which need not be contained in
or accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating that
(1) a review of the activities of the Company during such
year and of its performance under this Indenture has been made under
his or her supervision, and
(2) to the best of his or her knowledge, based on such
review, (A) the Company has complied with all the conditions and
covenants imposed on it under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such condition
or covenant, specifying each such default known to him or her and the
nature and status thereof, and (B) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
(b) The Company shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any Event of Default or any event
which after notice or lapse of time or both would become an Event of Default.
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Section 4.08 GUARANTOR STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS.
(a) The Guarantor shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement (which need not be contained in
or accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Guarantor, stating that
(1) a review of the activities of the Guarantor during such
year and of performance under this Indenture has been made under his
or her supervision, and
(2) to the best of his or her knowledge, based on such
review, (A) the Guarantor has complied with conditions and covenants
imposed on it under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such condition or
covenant, specifying each such default known to him or her and the
nature and status thereof, and (B) no event has occurred and is
continuing which constitutes, or which after notice or lapse of time
or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him
and the nature and status thereof.
(b) The Guarantor shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any event which after notice or lapse
of time or both would become an Event of Default.
Section 4.09 MAINTENANCE OF PROPERTIES. The Company will cause all of
its material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company or any Subsidiary from selling or otherwise disposing for
value (which value may include any tax benefits or other intangible benefits)
any of its properties in the ordinary course of its business.
Section 4.10 INSURANCE. The Company will, and will cause each of its
Subsidiaries to maintain insurance covering their respective insurable
properties in such amounts and covering such risks as is usually carried by
companies of a similar size, engaged in similar businesses in similar locations
and owning similar properties, either
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with reputable insurance companies or, in whole or in part, by establishing
reserves of one or more insurance funds, either alone or with other corporations
or associations.
Section 4.11 EXISTENCE. Subject to Article 5, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and that of each Subsidiary and their respective
rights (charter and statutory) and franchises; provided, however, that the
foregoing shall not obligate the Company to preserve any such right or franchise
if the Company or any Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of its business or the business of such
Subsidiary and that the loss thereof is not disadvantageous in any material
respect to any Holder.
Section 4.12 PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon them or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a Lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
Section 4.13 WAIVER OF CERTAIN COVENANTS. The Company or the
Guarantor, as the case may be, may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 4.03, 4.04, 4.09,
4.10, 4.11 or 4.12 with respect to the Securities of any Series if before the
time for such compliance the Holders of at least a majority in principal amount
of the outstanding Securities of such Series, by Act of Holders, either shall
waive such compliance in such instance or generally shall have waived compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the Guarantor and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE 5.
CONSOLIDATION, MERGER AND SALES
Section 5.01 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Company with or into any other person or
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persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which either the Company will be the continuing
entity or the Company or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of all or
substantially all of the property of the Company, to any other person (whether
or not affiliated with the Company); provided, however, that:
(1) in case the Company shall consolidate with or merge into
another person or convey, transfer or lease all or substantially all
of its properties and assets to any person, the entity formed by such
consolidation or into which the Company is merged or the person which
acquires by conveyance or transfer, or which leases, all or
substantially all of the properties of the Company shall be a person
organized and existing under the laws of the United States of America,
any state thereof or the District of Columbia and shall expressly
assume, by an indenture (or indentures, if at such time there is more
than one Trustee) supplemental hereto, executed by the successor
person and the Guarantor and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment
of the principal of, any premium and interest on all the Securities
and the performance of every obligation in this Indenture and the
outstanding Securities on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no
Event of Default or event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing; and
(3) either the Company or the successor person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
No such consolidation, merger, conveyance, transfer or lease shall be
permitted by this Section unless prior thereto the Guarantor shall have
delivered to the Trustee a Guarantor's Officers' Certificate and an Opinion of
Counsel, each stating that the Guarantor's obligations hereunder shall remain in
full force and effect thereafter.
Section 5.02 SUCCESSOR PERSON SUBSTITUTED FOR COMPANY. Upon any
consolidation by the Company with or merger of the Company into any other person
or any conveyance, transfer or lease of all or substantially all of the
properties and assets of the Company to any person in accordance with Section
5.01, the successor person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and
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may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor person had been named as the Company herein;
and thereafter, except in the case of a lease, the predecessor person shall be
released from all obligations and covenants under this Indenture and the
Securities.
Section 5.03 GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Guarantor with or into any other person or
persons (whether or not affiliated with the Guarantor), or successive
consolidations or mergers in which either the Guarantor will be the continuing
entity or the Guarantor or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of all or
substantially all of the property of the Guarantor, to any other person (whether
or not affiliated with the Guarantor); provided, however, that:
(1) in case the Guarantor shall consolidate with or merge
into another person or convey, transfer or lease all or substantially
all of its properties and assets to any person, the entity formed by
such consolidation or into which the Guarantor is merged or the person
which acquires by conveyance or transfer, or which leases, all or
substantially all of the properties and assets of the Guarantor shall
be a person organized and existing under the laws of the United States
of America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture (or indentures, if at such time
there is more than one Trustee) supplemental hereto, executed and
delivered by the Company and the successor person and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the
obligation of the Guarantor under the Guarantee and the performance of
every other covenant of this Indenture on the part of the Guarantor to
be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) each of the Guarantor and the successor person has
delivered to the Trustee a Guarantor's Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
Section 5.04 SUCCESSOR PERSON SUBSTITUTED FOR GUARANTOR. Upon any
consolidation or merger or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Guarantor to any person in
accordance with Section 5.03, the successor person formed by such consolidation
or into
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which the Guarantor is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Guarantor under this Indenture with the same effect as if such
successor person had been named as the Guarantor herein, and thereafter, except
in the case of a lease to another person, the predecessor person shall be
released from all obligations and covenants under this Indenture.
Section 5.05 ASSUMPTION BY GUARANTOR. The Guarantor, or a subsidiary
thereof that is a corporation, or any other person that owns all of the
Company's capital stock or any person that owns all of the capital stock of a
person that owns all of the Company's capital stock may directly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment of the
principal of, any premium and interest on all the Securities of any or all
Series issued under this Indenture and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed; provided,
however, that immediately after giving effect to such assumption, no Event of
Default and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing. Upon any such
assumption, the Guarantor or such subsidiary or such other person shall succeed
to, and be substituted for and may exercise every right and power of, the
Company under this Indenture with the same effect as if the Guarantor or such
subsidiary had been named as the Company herein and the Company shall be
released from all obligations and covenants with respect to such Securities. No
such assumption shall be permitted unless the Guarantor or such other person has
delivered to the Trustee (i) an Officers' Certificate and an Opinion of Counsel,
each stating that such assumption and supplemental indenture comply with this
Article, and that all conditions precedent herein provided for relating to such
transaction have been complied with and that, in the event of assumption by a
subsidiary or another person, the Guarantee and all other covenants of the
Guarantor herein remain in full force and effect and (ii) an opinion of
independent counsel that the Holders of guaranteed Securities (assuming such
Holders are only taxed as residents of the United States) shall have no
materially adverse United States federal tax consequences as a result of such
assumption, and that, if any Securities are then listed on the New York Stock
Exchange, that such Securities shall not be delisted as a result of such
assumption.
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ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT. An "Event of Default" occurs with
respect to the Securities of any Series if:
(a) the Company or the Guarantor defaults in the payment of
any interest on any Securities of such Series, and such default
continues for 30 days;
(b) the Company or the Guarantor defaults in payment of
principal of or premium, if any, on the Securities of such Series when
the same become due at maturity, upon redemption, by declaration or
otherwise;
(c) the Company or the Guarantor materially defaults in the
performance or materially breaches any of their respective covenants
or obligations under this Indenture, any supplemental indenture or the
Securities of such Series and such material default or breach
continues for a period of 90 days after which the Company or the
Guarantor receives written notice from the Trustee or the holders of
at least 25% in aggregate principal amount of the outstanding
Securities of such Series;
(d) the Company or the Guarantor defaults in the payment of
the principal of any bond, debenture, note or other evidence of
indebtedness, in each case for money borrowed, or in the payment of
principal under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed, which default for payment of
principal is in an aggregate principal amount exceeding $25,000,000
(or its equivalent in any other currency or currencies) when such
indebtedness becomes due and payable (whether at maturity, upon
redemption or acceleration or otherwise), if such default shall
continue unremedied or unwaived for more than 30 business days and the
time for payment of such amount has not been expressly extended;
(e) the failure by the Company or the Guarantor generally to
pay each of their respective debts as they become due, or the
admission in writing of the inability of the Company or the Guarantor
to pay each of their respective debts generally, or the making of a
general assignment for the benefit of each of their respective
creditors, or the institution of any proceeding by or against the
Guarantor or the Company (other than any proceeding brought against
the Company or the Guarantor as applicable, that is dismissed within
180 days from its commencement) seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection,
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relief or composition (in each case, other than a solvent liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief or composition) of it or its debts under any law relating to
bankruptcy, insolvency, reorganization, moratorium or relief of
debtors, or seeking the entry of an order for relief or appointment of
an administrator, receiver, trustee, intervenor or other similar
official for it or for any substantial part of its property, or the
taking of any action by the Guarantor or the Company to authorize any
of the actions set forth in this clause (e); and
(f) a material default in the performance or material breach
by the Guarantor of any covenant or obligation of the Guarantor
contained in the Guarantee, and continuance of such material default
or breach for a period of 90 days after which the Company or the
Guarantor receive written notice from the Trustee or the holders of at
least 25% in aggregate principal amount of the Securities of such
Series.
Section 6.02 ACCELERATION. If an Event of Default occurs with respect
to the Securities of any Series and is continuing, the Trustee, by notice to the
Company and the Guarantor, or the Holders of at least 25% in principal amount of
all of the outstanding Securities of that Series, by notice to the Company, the
Guarantor, and the Trustee, may declare the principal (or, if the Securities of
that Series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that Series) of all the
Securities of that Series to be due and payable. Upon such declaration, such
principal (or, in the case of Original Issue Discount Securities, such specified
amount) shall be due and payable immediately. At any time after such declaration
of acceleration has been made, but before a judgment or decree for payment of
money has been obtained, the Holders of a majority in principal amount of all of
the Securities of that Series, by notice to the Trustee, may rescind such a
declaration and its consequences if all existing Events of Default have been
cured or waived except nonpayment of principal or interest that has become due
solely because of the acceleration and such declaration of acceleration and its
consequences shall be automatically annulled and rescinded.
Section 6.03 OTHER REMEDIES AVAILABLE TO TRUSTEE.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of or interest
on the Securities of the Series that is in default or to enforce the performance
of any provision of the Securities of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission
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by the Trustee or any Securityholder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
Section 6.04 WAIVER OF EXISTING DEFAULTS. The Holders of a majority in
principal amount of any Series of Securities by notice to the Trustee may waive
an existing Default with respect to that Series and its consequences, except a
Default in the payment of the principal of or interest on any Security.
Section 6.05 CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Securities of each Series affected (with each such
Series voting as a class) may direct the time, method, and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that would involve the
Trustee in personal liability.
Section 6.06 LIMITATION ON SUITS BY SECURITYHOLDERS. A Securityholder
may not pursue a remedy with respect to this Indenture or the Securities of any
Series unless:
(1) the Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the Securities
of that Series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Securities of that Series shall have made a written
request to the Trustee to initiate proceedings in respect of such
Event of Default in its own name as Trustee;
(3) the Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after receipt of such notice,
request and offer of indemnity, has failed to institute any such
proceedings; and
(5) no direction inconsistent with such request has been
given to the Trustee during the 60-day period by the Holders of a
majority in the outstanding aggregate principal amount of the
Securities of that Series.
A Securityholder of any Series may not use this Indenture to prejudice
the rights of another Securityholder of that Series or any other Series or to
obtain a preference or priority over another Securityholder of that Series or
any other Series.
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Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment or principal of and interest on the Security, on or after the
respective due dates expressed in the Security, and the right of any Holder of a
coupon to receive payment of interest due as provided in such coupon, or to
bring suit for the enforcement of any such payment, on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 COLLECTION SUITS BY TRUSTEE. If a Default specified in
Section 6.01(a) or (b) occurs and continues for the period specified therein, if
any, the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company or the Guarantor for the whole amount of such
principal and interest then in default.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relating to the Company, the Guarantor or
their creditors or property.
Section 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities in respect of which or for
the benefit of which such money has been collected for amounts due and
unpaid on such Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest, respectively;
and
THIRD: to the person or persons lawfully entitled thereto,
or as a court of competent jurisdiction may direct.
The Trustee may fix a record date (with respect to Registered
Securities) and payment date for any such payment to Holders of Securities.
Any such record date shall not be less than 10 days nor more than 60
days prior to the applicable payment date.
Section 6.11 UNDERTAKING FOR COSTS. If any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the
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filing by any party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable attorneys' fees
against any party litigant in this suit having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07,
or a suit by Holders of more than 25% in principal amount of the Securities of
any Series.
ARTICLE 7.
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights, duties and powers under this Indenture and use the
same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon notices,
certificates, opinions or other documents furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee
shall examine the notices, certificates, opinions or other documents
to determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section;
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
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(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Sections 6.04 and 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b), and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability, or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company or the Guarantor. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
Section 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel or require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written advice of counsel
acceptable to the Company, the Guarantor, and the Trustee, a certificate of an
Officer or Officers delivered pursuant to Section 2.02(c), an Officers'
Certificate, or an Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(e) Except as otherwise provided in Section 7.01, the Trustee shall
not be liable for any action or omission of any Agent which is not the Trustee.
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company, or one of its Affiliates with the same
rights it would have if it were not Trustee, subject to Sections 7.10 and 7.11.
Any Agent may do the same with like rights.
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Section 7.04 TRUSTEE'S DISCLAIMER. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities or the
Guarantees. It shall not be accountable for the Company's use of the proceeds
from the Securities or for monies paid over to the Company or by the Company to
any Holders or to any Paying Agent pursuant to the Indenture, and it shall not
be responsible for any statement in the Securities other than its certificate of
authentication.
Section 7.05 NOTICE OF DEFAULTS. If a Default occurs and is continuing
with respect to the Securities of any Series and if it is known to the Trustee,
the Trustee shall mail to each Holder of a Security of that Series entitled to
receive reports pursuant to TIA Sections 315(b) and 313(c) (and, if Unregistered
Securities of that Series are outstanding, shall cause to be published at least
once in an Authorized Newspaper in the City of New York) notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment on
the Securities of any Series, the Trustee may withhold the notice if and so long
as its Corporate Trust Committee or a committee of its Responsible Officers in
good faith determines that withholding such notice is in the interests of
Securityholders of that Series.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after each anniversary date of the first issue of a
Series of Securities, the Trustee shall mail to each Securityholder of that
Series entitled to receive reports pursuant to TIA Section 313(c) a brief report
dated as of such date that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b).
(b) At the time that it mails such a report to Securityholders of any
Series, the Trustee shall file a copy of that report with the SEC and with each
stock exchange on which the Securities of that Series are listed. The Company
shall provide written notice to the Trustee when the Securities of any Series
are listed on any stock exchange.
Section 7.07 COMPENSATION AND INDEMNITY.
(a) The Company and the Guarantor shall pay to the Trustee from time
to time reasonable compensation for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company and the Guarantor shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred by it in connection with the
performance of its duties under this Indenture. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
(b) The Company and the Guarantor shall indemnify the Trustee against
any loss or liability incurred by it arising out of or in connection with its
acceptance or
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administration of the trust or trusts hereunder. The Trustee shall notify the
Company and the Guarantor promptly of any claim for which it may seek indemnity.
The Company and the Guarantor shall defend the claim, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
and the Guarantor shall pay the reasonable fees and expenses of such counsel.
Neither the Company nor the Guarantor need pay for any settlement made without
its consent.
(c) Neither the Company nor the Guarantor need reimburse any expense
or indemnify against any loss of liability incurred by the Trustee through
negligence or bad faith.
(d) To secure the payment obligations of the Company and the Guarantor
pursuant to this Section, the Trustee shall have a lien prior to the Securities
of any Series on all money or property held or collected by the Trustee, except
that held in trust to pay principal and interest on particular Securities of a
Series.
(e) If the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(e) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law.
Section 7.08 REPLACEMENT OF TRUSTEE.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of any
Series by so notifying the Company and the Guarantor. The Holders of a majority
in principal amount of the Securities of any Series may remove the Trustee with
respect to that Series by so notifying the Trustee, the Company, and the
Guarantor and may appoint a successor Trustee for such Series with the consent
of the Company and the Guarantor.
(c) The Company and the Guarantor may remove the Trustee with respect
to Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
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In addition, the Company and the Guarantor may remove the Trustee with
respect to Securities of any Series without cause if the Company and the
Guarantor give written notice to the Trustee of such proposed removal at least
six months in advance of the proposed effective date of such removal; provided,
however, that such removal shall not become effective if a Default exists on the
date of the giving of such notice or occurs prior to the date such removal is
scheduled to become effective.
(d) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of any Series, the
Company and the Guarantor shall promptly appoint a successor Trustee for such
Series.
(e) If a successor Trustee with respect to the Securities of any
Series does not take office within 30 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company, the Guarantor, or the Holders of
a majority in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) If the Trustee with respect to the Securities of any Series fails
to comply with Section 7.10, any Securityholder of the applicable Series may
petition any court of competent jurisdiction for the removal of such Trustee and
the appointment of a successor Trustee.
(g) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee, the Guarantor, and the Company. Thereupon,
the resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers, and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
Indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities to the successor Trustee
subject to the lien provided for in Section 7.07. The Company shall give notice
of each appointment of a successor Trustee for any Series of Securities by
publishing notice of such event once in an Authorized Newspaper in the City of
New York and by mailing written notice of such event by first-class mail to the
Holders of Securities of such Series entitled to receive reports pursuant to
Section 4.02(c).
(h) All provisions of this Section 7.08 except subparagraphs (c)(1)
and (d) and the words "subject to the lien provided for in Section 7.07" in
subparagraph (g) shall apply also to any Paying Agent located outside the United
States and its possessions and required by Section 2.04.
(i) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company, the
Guarantor, the retiring Trustee, and such successor Trustee shall execute and
deliver a supplemental
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indenture wherein such successor Trustee shall accept such appointment, and
which (1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, such successor Trustee all the rights,
powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those Series to which the appointment of such successor
Trustee relates; (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those Series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee; and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
Section 7.09 SUCCESSOR TRUSTEE, AGENTS BY MERGER, ETC. If the Trustee
or any Agent consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business assets to, another
corporation, the successor corporation, without any further act, shall be the
successor Trustee or Agent, as the case may be.
Section 7.10 ELIGIBILITY; DISQUALIFICATION. This Indenture shall
always have a Trustee with respect to each Series of Securities who satisfies
the requirements of TIA Section 310(a)(1).
The Trustee shall always have a combined capital and surplus of at
least $10,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA Section 310(b)(9), except that
there shall be excluded from the operation of TIA Section 310(b)(1) each Series
of Securities and all indentures of the Company, the Guarantor, or any of their
Affiliates now or hereafter existing which may be excluded under the proviso of
TIA Section 310(b)(1).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
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ARTICLE 8.
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 COMPANY'S AND GUARANTOR'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
The Company and the Guarantor may, at each of their option by Board
Resolution, with respect to the Securities of any outstanding Series in its
entirety or of all outstanding Series issued under this Indenture elect to have
either Section 8.02 or Section 8.03 be applied to all of the Securities of such
Series (the "Defeased Securities"), upon compliance with the conditions set
forth below in this Article 8.
Section 8.02 DEFEASANCE AND DISCHARGE.
Upon the Company's or Guarantor's exercise under Section 8.01 of the
option applicable to this Section 8.02, the Company, the Guarantor and any other
obligor upon the Securities to be defeased, if any, shall be deemed to have been
discharged from its obligations with respect to the Defeased Securities on the
date the conditions set forth in Section 8.04 below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company, the
Guarantor and any other obligor upon the Securities to be defeased shall be
deemed to have paid and discharged the entire Debt represented by the Defeased
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company and upon the Company's request, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of Defeased Securities to receive, solely from the trust fund
described in Section 8.04 and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on, such
Securities, when such payments are due, (b) the Company's and the Guarantor's
obligations with respect to such Defeased Securities under Sections 2.08, 2.09,
2.12 and 4.02, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, including, without limitation, the Trustee's rights under
Section 7.07, and (d) this Article 8. Subject to compliance with this Article 8,
the Company or the Guarantor may exercise each of its options under this Section
8.02 notwithstanding the prior exercise of its option under Section 8.03 with
respect to the Securities to be defeased.
Section 8.03 COVENANT DEFEASANCE.
Upon the Company's or the Guarantor's exercise under Section 8.01 of
the option applicable to this Section 8.03, the Company or the Guarantor shall
be released
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from its obligations under any covenant or provision contained or referred to in
Sections 4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11 and 4.12, inclusive, and
Article 5 hereof, with respect to the Defeased Securities on and after the date
the conditions set forth in Section 8.04 below are satisfied (hereinafter,
"covenant defeasance "), and the Defeased Securities shall thereafter be deemed
to be not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the Defeased Securities, the Company or the
Guarantor may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01(c) but, except as specified above, the
remainder of this Indenture and such Defeased Securities shall be unaffected
thereby.
Section 8.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
8.02 or Section 8.03 to the Defeased Securities:
(a) The Company or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (i) cash in
U.S. dollars, (ii) U.S. Government Obligations, or (iii) a combination thereof,
in such amounts (together with interest to be paid thereunder) as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants or a nationally recognized investment banking firm expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, the principal
of, premium, if any, and interest on, the Defeased Securities, on the stated
date for payment thereof or on the applicable redemption date, as the case may
be, of such principal, premium, if any, or interest on such Defeased Securities
if at or prior to electing to exercise either its option applicable to Section
8.02 or its option applicable to Section 8.03, the Company or the Guarantor has
delivered to the Trustee an irrevocable notice of such defeasance, including the
date that such defeasance is to occur.
For this purpose, "U S. Government Obligations" means securities that
are (i) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged or (ii) obligations of a
person controlled or supervised by
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and acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a) (2) of
the Securities Act), or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depositary receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depositary receipt.
(b) The Company or the Guarantor, as the case may be, shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that (i) the Holders of the outstanding
Securities to be defeased will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and will be subject to Federal
income tax on the same amounts, in the same manner and at the same time as would
have been the case if such deposit had not occurred, which in the case of a
defeasance under Section 8.02 must be based on a change in law or a published
ruling by the United States Internal Revenue Service and (ii) the deposit shall
not result in the Company or the Guarantor being deemed an "investment company"
required to be registered under the Investment Company Act of 1940, as amended;
(c) No Event of Default, or event which with notice or lapse of time
would become an Event of Default (including by reason of such deposit) with
respect to the Securities shall have occurred and be continuing on the date of
such deposit, and with respect to an election under Section 8.02 insofar as
Section 6.01(e) is concerned, at any time during the period ending on the 181st
day after the date of deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default under, this Indenture or any
other material agreement or instrument to which the Company or the Guarantor is
a party or by which it is bound; and
(e) The Company or the Guarantor, as the case may be, shall have
delivered to the Trustee an Offers' Certificate as to the compliance with all
conditions precedent provided for in the Indenture relating to the satisfaction
and discharge of the Securities to be defeased.
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Opinions of Counsel required to be delivered under this Section shall
be in form and substance reasonably satisfactory to the Trustee and may have
qualifications customary for opinions of the type required and counsel
delivering such opinions may rely on certificates of the Company, the Guarantor
or government or other officials customary for opinions of the type required,
which certificates shall be limited as to matters of fact, including that
various financial covenants have been complied with.
Section 8.05 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of Section 4.05, all U.S. dollars and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 8.04, in respect of the Defeased Securities shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through
any Paying Agent (excluding the Company, the Guarantor or any of its Affiliates
acting as Paying Agent), as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company and the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 8.04 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is imposed, assessed or for the account of the Holders of
the Defeased Securities.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any U.S. dollars or U.S. Government Obligations held by it as provided
in Section 8.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect defeasance or covenant defeasance.
Section 8.06 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or
U.S. Government Obligations in accordance with Section 8.02 or 8.03, as the case
may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's and the Guarantor's obligations under this Indenture and the
Securities shall be revived and reinstated, with present and prospective effect,
as though no deposit had occurred
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pursuant to Section 8.02 or 8.03, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such U.S. dollars or U.S.
Government Obligations in accordance with Section 8.02 or 8.03, as the case may
be; provided, however, that if the Company or the Guarantor makes any payment to
the Trustee or Paying Agent of principal of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Trustee or Paying
Agent shall promptly pay any such amount to the Holders of the Securities and
the Company or the Guarantor shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the U.S. dollars and U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENTS AND WAIVERS; SUPPLEMENTAL INDENTURES
Section 9.01 WITHOUT CONSENT OF HOLDERS. The Company (when authorized
pursuant to a Board Resolution), the Guarantor, (when authorized pursuant to a
Board Resolution), and the Trustee may enter into one or more supplemental
indentures without consent of any Securityholder for any of the following
purposes:
(1) to cure any ambiguity, defect, or inconsistency herein,
in any supplemental indenture, in the Securities of any Series or in
the Guarantees;
(2) to comply with Article 5;
(3) to make any change that does not adversely affect the
rights of any Holder of Securities;
(4) to add to the rights of Holders of any Securities;
(5) to secure the Securities pursuant to Section 4.03.
(6) to evidence the succession of another person to the
Company or the Guarantor, and the assumption by any such successor of
the covenants of the Company or the Guarantor, as the case may be,
contained herein and in the Securities; or
(7) to establish the form or terms of Securities of any
Series; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more Series and to add to or change any of the
provisions of this Indenture as shall be
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necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; or
(9) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any Series of Securities, provided that
any such action shall not adversely affect the interests of any Holder
of a Security of such Series or any other Security in any material
respect.
Section 9.02 WITH CONSENT OF HOLDERS.
(a) With the written consent of the Holders of a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), by Act of Holders
delivered to the Company, the Guarantor and the Trustee, the Company (when
authorized pursuant to a Board Resolution), the Guarantor (when authorized
pursuant to a Board Resolution), and the Trustee may enter into a supplemental
indenture to add any provisions to or to change or eliminate any provisions of
this Indenture or of any supplemental indenture or to modify, in each case in
any manner not covered by Section 9.01, the rights of the Securityholders of
each such Series. The Holders of a majority in principal amount of the
outstanding Securities of each Series affected by such waiver (with each Series
voting as a class), by notice to the Trustee, may waive compliance by the
Company or the Guarantor with any provision of this Indenture, any supplemental
indenture, or the Securities of any such Series. However, without the consent of
each Securityholder affected, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment or waiver;
(2) change the rate of or change the time for payment of
interest on any Security;
(3) change the principal of or change the fixed maturity of
any Security;
(4) waive a Default in the payment of the principal of,
premium, if any, or interest on any Security;
(5) make any Security payable in currency other than that
stated in the Security;
(6) make any change in Section 6.04, 6.07, or 9.02;
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(7) impair the right to institute suit for the enforcement
of any payment on or after the stated maturity of such payment or, in
the case of redemption, on or after the redemption date;
(8) modify or effect in any manner adverse to the Holders
the terms and conditions of the obligations of the Guarantor in
respect of the due and punctual payments of principal of, or any
premium or interest on or any sinking fund requirements of any
Securities.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular Series of Securities, or which
modifies the rights of the Holders of Securities of such Series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other Series.
(b) It is not necessary under this Section 9.02 for the
Securityholders to consent to the particular form of any proposed supplemental
indenture, but it is sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company, the Guarantor, and
the Trustee of any supplemental indenture pursuant to the provisions of this
Section 9.02, the Company shall transmit by mail a notice, setting forth in
general terms the substance of such supplemental indenture, to all Holders of
Registered Securities, as the names and addresses of such Holders appear on the
register for each Series of Securities, and to such Holders of Unregistered
Securities as are entitled to receive reports pursuant to TIA Section 313(c).
Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES. As a condition to
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trust
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 315 of the TIA) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.04 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
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this Indenture for all purposes; and every Holder of a Security theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any Series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any Series so modified as to conform, in the opinion of the
Trustee, the Company and the Guarantor to any such supplemental indenture may be
prepared and executed by the Company, guaranteed by the Guarantor and
authenticated and delivered by the Trustee in exchange for outstanding
Securities of such Series.
Section 9.06 COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Securities of one or more previously created Series shall
be set forth in a supplemental indenture that complies with the TIA as then in
effect.
Section 9.07 REVOCATION AND EFFECT OF CONSENTS. Until an amendment or
waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security even if a notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of his Security if the Trustee receives a written notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder of
each Series affected by such amendment or wavier.
Section 9.08 NOTATION ON OR EXCHANGE OF SECURITIES. The Trustee shall
place an appropriate notation about an amendment or waiver on any Security of
any Series thereafter authenticated. The Company, in exchange for Securities of
that Series may issue, the Guarantor may guarantee and the Trustee shall
authenticate new Securities of that Series that reflect the amendment or waiver.
Section 9.09 TRUSTEE PROTECTED. The Trustee need not sign any
supplemental indenture that adversely affects its rights or obligations.
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ARTICLE 10.
MISCELLANEOUS
Section 10.01 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with a provision which is required to
be included in this Indenture by the TIA, the required provision shall control.
Section 10.02 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and
the Guarantor. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee, the Company
and the Guarantor, if made in the manner provided in this Section.
(b) The ownership of Securities shall be proved by the Registrar.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent, the Company,
the Guarantor or any other obligor of the Securities in the reliance thereon,
whether or not notation of such action is made upon such Security.
(d) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificates or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
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(e) If the Company or the Guarantor shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company or the Guarantor may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of such Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company and the Guarantor shall have no
obligation to do so. Notwithstanding Section 316(c) of the TIA, any such record
date shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not more than 30 days prior to the first solicitation of
Holders generally in connection therewith and no later than the date such first
solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on such
record date shall be deemed to be Holders for purposes of determining whether
Holders of the requisite proportion of Securities than outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for this purpose the
Securities then outstanding shall be computed as of such record date; provided
that no such request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after such record date.
(f) For the purposes of this Indenture, any action by the Holders
which may be taken in writing may be taken by electronic means or as otherwise
reasonably acceptable to the Trustee.
Section 10.03 NOTICES.
(a) Any notice or communication by the Company, the Guarantor, or the
Trustee is duly given if in writing and delivered in person or mailed by
certified mail:
if to the Company to:
Alliant Energy Resources, Inc.
222 West Washington Avenue
Madison, Wisconsin 53703
Attention: Corporate Secretary
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if to the Guarantor to:
Alliant Energy Corporation
222 West Washington Avenue
Madison, Wisconsin 53703
Attention: Corporate Secretary
if to the Trustee to:
Firstar Bank, N.A.
1555 North RiverCenter Drive, Suite 301
Milwaukee, Wisconsin 53212
Attention: Corporate Trust Department
(b) The Company, the Guarantor, or the Trustee by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities entitled to
receive reports pursuant to TIA Section 313(c) shall be mailed by first-class
mail to the addresses for Holders of Registered Securities shown on the register
kept by the Registrar and to addresses filed with the Trustee for other Holders.
Failure to so mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders of
Securities of that or any other Series entitled to receive notice.
(d) If a notice of communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company or the Guarantor mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and to each Agent at the
same time.
(f) If it shall be impractical in the opinion of the Trustee, the
Guarantor, or the Company to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Section 10.04 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders of any Series may communicate pursuant to Section 312(b) of the
TIA with other Securityholders of that Series or of all Series with respect to
their rights under this Indenture or under the Securities of that Series or of
all Series. The
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Company, the Guarantor, the Trustee, the Registrar, and anyone else shall have
the protection of Section 312(c) of the TIA.
Section 10.05 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company or the Guarantor to the Trustee to
take any action under this Indenture, the Company or the Guarantor shall furnish
to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Section 10.06 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 10.07 RULES BY TRUSTEE AND AGENTS. The Trustee may make
reasonable rules for action by or at a meeting of Securityholders of one or more
Series. The Paying Agent or Registrar may make reasonable rules and set
reasonable requirements for its functions.
Section 10.08 LEGAL HOLIDAYS. Except as may otherwise be provided in
the form of Securities of any particular Series pursuant to the provisions of
this Indenture, a "Legal Holiday" is a Saturday, Sunday, or a day on which
banking institutions are not required to be open. If a payment date is a Legal
Holiday at a place of
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payment, payment may be made at such place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.09 GOVERNING LAW. The laws of the State of Wisconsin shall
govern this Indenture, the Securities, and any coupons appertaining thereto.
Section 10.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan, or debt
agreement of the Company or the Guarantor or any Affiliate of either of them. No
such indenture, loan, or debt agreement may be used to interpret this Indenture.
Section 10.11 NO RECOURSE AGAINST OTHERS. No director, officer,
employee, or stockholder, as such, of the Company or the Guarantor shall have
any liability for any obligations of the Company or the Guarantor under the
Securities or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
Section 10.12 EXECUTION IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one instrument.
Section 10.13 CURRENCIES. Except as may otherwise be provided in the
form of Securities of any particular Series pursuant to the provisions of this
Indenture, all references in this Indenture or in the Securities to "dollars,"
"$," or any similar reference shall be to the currency of the United States of
America.
ARTICLE 11.
REPAYMENT AT THE OPTION OF HOLDERS
Section 11.01 APPLICABILITY OF ARTICLE. Securities of any Series which
are repayable at the option of the Holders thereof before their stated maturity
shall be repaid in accordance with the terms of the Securities of such Series.
[THE REST OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals, if any, to be hereunto
affixed and attested, all as of the day and year first above written.
ALLIANT ENERGY RESOURCES, INC.
By: /s/ Edward M. Gleason
----------------------------------
Name: Edward M. Gleason
Title Vice President - Treasuer
and Corporate Secretary
ALLIANT ENERGY CORPORATION,
as Guarantor
By: /s/ Edward M. Gleason
----------------------------------
Name: Edward M. Gleason
Title: Vice President - Treasuer
and Corporate Secretary
FIRSTAR BANK, N.A.,
as Trustee
By: /s/ Pamela Warner
----------------------------------
Name: Pamela Warner
Title: Assistant Vice President
Attested by /s/ Yvonne Siira
Yvonne Sira
Assistant Secretary
60
Execution Copy
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 4, 1999
ALLIANT ENERGY RESOURCES, INC.,
Company,
ALLIANT ENERGY CORPORATION,
As Guarantor
and
FIRSTAR BANK, N.A.,
as Trustee
First Supplemental Indenture to the
Indenture
dated as of November 4, 1999
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of November 4, 1999 (the
"Supplemental Indenture"), among ALLIANT ENERGY RESOURCES, INC., a Wisconsin
corporation (the "Company"), ALLIANT ENERGY CORPORATION, a Wisconsin
corporation, as guarantor (the "Guarantor"), and FIRSTAR BANK, N.A., as Trustee
(the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company and the Guarantor have heretofore executed and delivered
to the Trustee an Indenture, dated as of November 4, 1999 (as supplemented and
amended from time to time, the "Indenture"), providing for the issuance from
time to time of the Company's unsecured unsubordinated debentures, notes or
other evidences of indebtedness (the "Securities"), to be issued in one or more
series as provided in the Indenture.
It is provided in Section 2.02 of the Indenture that the Company, the
Guarantor and the Trustee may enter into indentures supplemental thereto to
establish the form or terms of Securities of any series.
The Company and the Guarantor desire to supplement and amend the
Indenture to allow for the issuance of Securities to be initially sold within
the United States to U.S. Persons that are Qualified Institutional Buyers and
Institutional Accredited Investors and issued in the form of one or more
Restricted Global Securities deposited with the Trustee, as custodian for the
Depositary, and registered in the name of a nominee of the Depositary, and
Restricted Physical Securities.
The Company and the Guarantor desire to set forth the terms and form
of a new series of Restricted Securities to be known as the Company's 7 3/8%
Senior Notes Due 2009, in an aggregate principal amount of TWO HUNDRED AND FIFTY
MILLION DOLLARS ($250,000,000) (the "7 3/8% Senior Notes" or the "Senior Notes")
and guaranteed by the Guarantor.
The 7 3/8% Senior Notes and the certificate of authentication to be
borne by the 7 3/8% Senior Notes are to be substantially in the form set forth
in Exhibit A hereto.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the 7
3/8% Senior Notes by the Holders (as defined herein) thereof, it is mutually
covenanted and
<PAGE>
agreed as follows for the equal and ratable benefit of the Holders of the 7 3/8%
Senior Notes:
ARTICLE 1.
AMENDMENTS
Section 1.01. Article 1 of the Indenture shall be amended by inserting
in Section 1.01 the following new terms with the following definitions in the
appropriate alphabetic positions:
"Additional Interest" has the meaning set forth in Section 2.06 of the
Supplemental Indenture.
"Closing Time" means, with respect to the 7 3/8% Senior Notes,
November 9, 1999, the date of initial issuance of the Securities issued
hereunder.
"Comparable Treasury Issue" has the meaning set forth in Section 2.07
of the Supplemental Indenture.
"Comparable Treasury Price" has the meaning set forth in Section 2.07
of the Supplemental Indenture.
"Depositary" means The Depositary Trust Company of New York City.
"Event Date" has the meaning set forth in Section 2.06 of the
Supplemental Indenture.
"Exchange Certificate" means a certificate substantially in the form
of Exhibit C hereto, as such form may be revised or modified with respect to any
series of Securities by a Board Resolution or indenture supplemental hereto
creating such series.
"Exchange Securities" means Securities that are issued and exchanged
for any series of Restricted Securities in accordance with an Exchange Offer, as
provided for in a registration rights agreement related to such series and this
Indenture, containing substantially identical terms as such series of Restricted
Securities, except that (i) such Exchange Securities shall not contain terms
with respect to transfer restrictions and shall be issued in a transaction
registered under the Securities Act and (ii) certain provisions relating to an
increase in the stated rate of interest thereon shall be eliminated.
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"Exchange Offer" means an offer by the Company to Holders of any
series of Restricted Securities to exchange all of such Restricted Securities
for Exchange Securities, as provided for in a related registration rights
agreement.
"Exchange Offer Registration Statement" means an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, all
exhibits thereto and all documents incorporated by reference therein.
"IAI Letter" means a Letter for Institutional Accredited Investors
which must be signed by each such investor attached hereto as Exhibit D.
"Independent Investment Banker" has the meaning set forth in Section
2.07 of the Supplemental Indenture.
"Institutional Accredited Investor" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3), and (7) of the
Regulation D under the Securities Act.
"Qualified Institutional Buyer" or "QIB" means a "qualified
institutional buyer" as such term is defined in Rule 144A.
"Reference Treasury Dealer" has the meaning set forth in Section 2.07
of the Supplemental Indenture.
"Reference Treasury Dealer Quotation" has the meaning set forth in
Section 2.07 of the Supplemental Indenture.
"Registration Default" has the meaning set forth in Section 2.06 of
the Supplemental Indenture.
"Registration Rights Agreement" means, with respect to the 7 3/8%
Senior Notes, the Registration Rights Agreement dated as of November 9, 1999,
among the Company, the Guarantor and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, Salomon Smith
Barney Inc., ABN Amro Incorporated and Barclays Capital Inc., as initial
purchasers.
"Restricted Global Security" means any Restricted Security that is a
Global Security.
"Restricted Physical Security" means any Restricted Security in
permanent certificated form.
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"Restricted Security" means any Security issued pursuant to an
exemption from the Securities Act and bearing a Restrictive Legend.
"Restrictive Legend" has the meaning set forth in Section 2.19 of the
Indenture.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means, with respect to any series of
Restricted Securities, the Shelf Registration Statement specified in the
registration rights agreement related to such series.
"Supplemental Indenture" means the First Supplemental Indenture dated
as of November 9, 1999 among the Company, the Guarantor and the Trustee.
"Transfer Certificate" means a certificate substantially in the form
of Exhibit B hereto and to be attached as Annex A to the Form of 7 3/8% Senior
Notes, as such form may be varied or modified with respect to any series of
Securities by a Board Resolution or indenture supplemental hereto.
"Treasury Yield" has the meaning set forth in Section 2.07 of the
Supplemental Indenture.
"7 3/8% Senior Notes" has the meaning set forth in Section 2.01 of the
Supplemental Indenture.
Section 1.02. Article 2 of the Indenture shall be amended by adding to
the end of Section 2.15 the following:
"Securities offered and sold in reliance on Rule 144A under
the Securities Act may be issued in the form of one or more permanent
Global Securities in substantially the form set forth in Exhibit A and
containing the legend set forth in Section 2.19 (each, a "Restricted
Global Security"), deposited with the Depositary or with the Trustee,
as custodian for the Depositary or its nominee, duly executed by the
Company and authenticated by the Trustee as herein provided. The
aggregate principal amount of a Restricted Global Security may from
time to time be increased or decreased by adjustments made on the
records of the Depositary or the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
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Restricted Securities issued to Institutional Accredited
Investors and pursuant to Sections 2.08 and 2.20 in exchange for or
upon transfer of beneficial interests in a Restricted Global Security
may be in the form of Restricted Physical Securities containing the
Restrictive Legend as set forth in Section 2.19 (a "Restricted
Physical Security") until such time as the conditions set forth in
Section 2.19 are satisfied, in substantially the form set forth in
Exhibit A, as provided in Section 2.20.
Exchange Securities shall be issued in substantially the
form set forth in Exhibit A, but without any Restrictive Legend."
Section 1.03. Article 2 of the Indenture shall be amended by adding to
the end of such Article the following:
"Section 2.19. RESTRICTIVE LEGENDS. Unless and until (i) a
Restricted Security is sold pursuant to an effective Shelf
Registration Statement or (ii) a Restricted Security is exchanged for
an Exchange Security in an Exchange Offer pursuant to an effective
Exchange Offer Registration Statement, in each case pursuant to an
applicable registration rights agreement, each Restricted Global
Security and Restricted Physical Security shall bear the following
legend set forth below (the "Restrictive Legend") on the face thereof:
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
("RULE 144A") UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPHS (A)(1), (2), (3), OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH INSTITUTIONAL ACCREDITED
INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
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VIOLATION OF THE SECURITIES ACT, (2) AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER THIS NOTE PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE LAST
DATE ON WHICH ALLIANT ENERGY RESOURCES, INC. OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF ALLIANT ENERGY RESOURCES, INC. WAS THE OWNER OF THIS
NOTE (OR ANY PREDECESSOR OF THIS NOTE) OR (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
"RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO ALLIANT
ENERGY RESOURCES, INC., (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH
CASE TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS
(a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT SUBJECT IN EACH OF THE FOREGOING CASES OF ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR
THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL
TIMES WITHIN ITS OR THEIR CONTROL, AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED
THAT ALLIANT ENERGY RESOURCES, INC. AND THE TRUSTEE SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH
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OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
(II) IN EACH OF THE FOREGOING CASES, BUT ONLY IF THIS NOTE
IS NOT A GLOBAL SECURITY (AS DEFINED IN THE INDENTURE
REFERRED TO HEREIN), TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO ALLIANT
ENERGY RESOURCES, INC. AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
Section 1.04. Article 2 of the Indenture shall be amended by adding
the following to the end of Section 2.08:
"Any Physical Security delivered in exchange for an interest
in the Global Security pursuant to this Section shall bear the
Restrictive Legend unless such exchange is made on or after (i) a
Restricted Security is exchanged for an Exchange Security in an
Exchange Offer under an effective Exchange Offer Registration
Statement, (ii) a Restricted Security is sold under an effective Shelf
Registration Statement or (iii) two years after the later of the
original issue date of a Restricted Security and the last date on
which the Company or any affiliate of the Company was the owner of
such Restricted Security (the "Resale Restriction Termination Date")
and except as otherwise provided in Section 2.20."
Section 1.05. Article 2 of the Indenture shall be amended by adding
the following to the end of such Article:
"Section 2.20. TRANSFER PROVISIONS. Unless and until (i) a
Restricted Security is exchanged for an Exchange Security in an
Exchange Offer under an effective Exchange Offer Registration
Statement or (ii) a Restricted Security is sold pursuant to an
effective Shelf Registration Statement, the following provisions shall
apply:
(a) The provisions of this Section 2.20 shall apply to all
transfers involving any Restricted Physical Security and any
beneficial interest in any Restricted Global Security.
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(b) As used in this Section 2.20 only, "delivery" of a
certificate by a transferee or transferor means the delivery to the
Registrar by such transferee or transferor of the applicable
certificate duly completed; "holding" includes both possession of a
Physical Security and ownership of a beneficial interest in a Global
Security, as the context requires; "transferring" a Global Security
means transferring that portion of the principal amount of the
transferor's beneficial interest therein that the transferor has
notified the Registrar that it has agreed to transfer; and
"transferring" a Physical Security means transferring that portion of
the principal amount thereof that the transferor has notified the
Registrar that it has agreed to transfer.
As used in this Indenture, "Non-Registration Opinion and
Supporting Evidence" means a written Opinion of Counsel reasonably
acceptable to the Company to the effect that, and such other
certification or information as the Company may reasonably require to
confirm that, the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
(c) An Exchange Certificate, if not actually delivered,
shall be deemed delivered if (i) (A) the transferor advises the
Company and the Trustee in writing that the relevant offer and sale
were made in accordance with the provisions of Rule 144A or to an
Institutional Accredited Investor that is acquiring the Security for
its own account or for the account of such an Institutional Accredited
Investor for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution in violation of the
Securities Act (or, in the case of a transfer of a Restricted Physical
Security, the transferor checks the box provided on such Security to
that effect) and (B) the transferee advises the Company and the
Trustee in writing that (x) it and, if applicable, each account for
which it is acting in connection with the relevant transfer, is a
"Qualified Institutional Buyer," or an "Institutional Accredited
Investor," (y) it is aware that the transfer of Restricted Securities
to it is being made in reliance on the exemption from the provisions
of Section 5 of the Securities Act provided by Rule 144A and
Regulation D and (z) prior to the proposed date of transfer it has
been given the opportunity to obtain from the Company the information
referred to in Rule 144A(d)(4), and has either declined such
opportunity or has received such information (or, in the case of a
transfer of a Restricted Physical Security, the transferee signs the
certification provided on the such Security to that effect); or (ii)
the transferor holds the Restricted Global Security and is
transferring to a transferee that shall take delivery in the form of
the Restricted Global Security.
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(d) If the proposed transferor holds:
(1) a Restricted Physical Security which is
surrendered to the Registrar, and the proposed transferee or
transferor, as applicable:
(A) delivers (or is deemed to have
delivered pursuant to clause (c) above) an
Exchange Certificate and the proposed transferee
requests delivery in the form of a Restricted
Physical Security, then the Registrar shall (x)
register such transfer in the name of such
transferee and record the date thereof in its
books and records, (y) cancel such surrendered
Restricted Physical Security and (z) deliver a new
Restricted Physical Security to such transferee
duly registered in the name of such transferee in
principal amount equal to the principal amount
being transferred of such surrendered Restricted
Physical Security; or
(B) delivers (or is deemed to have
delivered pursuant to clause (c) above) an
Exchange Certificate and the proposed transferee
is or is acting through a participant with the
Depositary and requests that the proposed
transferee receive a beneficial interest in the
Restricted Global Security, then the Registrar
shall (x) cancel such surrendered Restricted
Physical Security, (y) record an increase in the
principal amount of the Global Security equal to
the principal amount being transferred of such
surrendered Restricted Physical Security and (z)
notify the Depositary in accordance with the
procedures of the Depositary that it has effected
such transfer.
In any of the cases described in this Section
2.20(d)(1), the Registrar shall deliver to the transferor a
new Restricted Physical Security in principal amount equal
to the principal amount not being transferred of such
surrendered Restricted Physical Security, as applicable.
(2) a beneficial interest in a Restricted Global
Security, and the proposed transferee or transferor, as
applicable:
(A) delivers (or is deemed to have
delivered pursuant to clause (c) above) an
Exchange Certificate and the proposed transferee
requests delivery in the form of a Restricted
Physical Security, then the Registrar shall (w)
register such transfer in the name of such
transferee and record the date thereof in its
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books and records, (x) record a decrease in the
principal amount of the Restricted Global Security
in an amount equal to the beneficial interest
therein being transferred, (y) deliver a new
Restricted Physical Security to such transferee
duly registered in the name of such transferee in
principal amount equal to the amount of such
decrease and (z) notify the Depositary in
accordance with the procedures of the Depositary
that it has effected such transfer; or
(B) delivers (or is deemed to have
delivered pursuant to clause (c) above) an
Exchange Certificate and the proposed transferee
is or is acting through a participant with the
Depositary and requests that the proposed
transferee receive a beneficial interest in the
Restricted Global Security, then the transfer
shall be effected in accordance with the
procedures of the Depositary therefor.
(e) In any case in which the Registrar is required
to deliver a Restricted Physical Security to a transferee or
transferor, the Company shall execute, the Guarantor shall
guarantee and the Trustee shall authenticate and make
available for delivery, such Restricted Physical Security.
(f) Any transferee entitled to receive a
Restricted Physical Security may request that the principal
amount thereof be evidenced by one or more Restricted
Physical Securities in any authorized denomination or
denominations and the Registrar shall comply with such
request if all other transfer restrictions are satisfied.
(g) The Registrar shall effect and record, upon
receipt of a written request from the Company or the
Guarantor so to do, a transfer not otherwise permitted by
Section 2.20(d), such recording to be done in accordance
with the otherwise applicable provisions of Section 2.20(d),
upon the furnishing by the proposed transferor or transferee
of a Non-Registration Opinion and Supporting Evidence.
(h) By its acceptance of any Security bearing the
Restrictive Legend, each Holder of such Security
acknowledges the restrictions on transfer of such Security
set forth in this Indenture and in the Restrictive Legend
and agrees that it shall transfer such Security only as
provided in this Indenture. The Registrar shall not register
a transfer of any Security unless such transfer complies
with the restrictions with respect thereto set forth in this
Indenture. The Registrar shall not be required to determine
(but may rely upon a determination made by the
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Company) the sufficiency of any such certifications, legal
opinions or other information.
(i) Upon the transfer, exchange or replacement of
Securities not bearing the Restrictive Legend, the Registrar
shall deliver Securities that do not bear the Restrictive
Legend. Upon the transfer, exchange or replacement of
Securities bearing the Restrictive Legend, the Registrar
shall deliver only Securities that bear the Restrictive
Legend unless (i) the requested transfer is at least two
years after the original issue date of the Restricted
Security (with respect to any Restricted Physical Security),
(ii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities
Act or (iii) such Securities are exchanged for Exchange
Securities pursuant to an Exchange Offer.
Section 2.21. CUSIP NUMBERS. The Company may use
"CUSIP" numbers (if then generally in use) in issuing the
Securities and, if so, the Trustee shall use "CUSIP" numbers
in notices to Holders as a convenience to Holders; provided
that any such notice may state that no representation is
made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice and that
reliance may be placed only on the other identification
numbers printed on the Securities. The Company shall
promptly notify the Trustee of any change in the CUSIP
numbers."
Section 1.06. Article 4 of the Indenture shall be amended by adding
the following paragraph immediately following the paragraph contained in Section
4.06:
"The Company will take all actions necessary to permit
resales of any Securities issued pursuant to Rule 144A and Regulation
D of the Securities Act including, without limitation, furnishing upon
request of a Holder of such Security to such Holder and a prospective
purchaser designated by such Holder financial and other information of
the Company required to be delivered under Rule 144A(d)(4) of the
Securities Act if at the time of such request the Company is not a
reporting company under Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended."
Section 1.07 The Indenture shall be amended by adding an exhibit
titled "Exhibit A." Exhibit A shall be the form of 7 3/8% Senior Note and the
related guarantee attached as Exhibit A hereto.
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Section 1.08. The Indenture shall be amended by adding an exhibit
titled "Exhibit B" immediately following Exhibit A of the Indenture. Exhibit B
shall be the form of Transfer Certificate attached as Exhibit B hereto.
Section 1.09. The Indenture shall be amended by adding an exhibit
titled "Exhibit C" immediately following Exhibit B of the Indenture. Exhibit C
shall be the form of Exchange Certificate attached as Exhibit C hereto.
Section 1.10. The Indenture shall be amended by adding an exhibit
titled "Exhibit D" immediately following Exhibit C of the Indenture. Exhibit D
shall be in the Form of IAI Letter attached as Exhibit D hereto.
ARTICLE 2.
PROVISIONS FOR THE 7 3/8% SENIOR NOTES
Section 2.01. There shall be a series of Securities entitled "7 3/8%
Senior Notes Due 2009" (herein designated the "7 3/8% Senior Notes"). The form
of the 7 3/8% Senior Notes, the Guarantees issued by the Guarantor and the
Trustee's certificate of authentication to be borne thereby shall be
substantially in the forms set forth in Exhibit A hereto and shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, all of the terms, conditions and covenants of the
Indenture and this Supplemental Indenture, including, but not limited to, the
provisions of the Indenture with respect to the transfer, exchange and
replacement thereof. The aggregate principal amount of the 7 3/8% Senior Notes
that may be executed by the Company and authenticated by the Trustee hereunder
shall be limited to TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000); provided,
however, any exchanges or replacements of the Senior Notes made pursuant to the
Indenture and the Supplemental Indenture following the original issuance
thereof, .shall not be counted against this limit.
Section 2.02. In accordance with the terms and conditions of the
Indenture, the Company may issue and sell the 7 3/8% Senior Notes inside the
United States without registration under the Securities Act in reliance on Rule
144A and Regulation D thereunder.
Section 2.03. Except as provided below, the 7 3/8% Senior Notes shall
be represented initially in the form of a Restricted Global Security. Each
Restricted Global Security shall be registered in the name of a nominee of the
Depositary and deposited on behalf of the purchasers of the 7 3/8% Senior Notes
represented thereby with a custodian
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for the Depositary for credit to the respective accounts of the purchasers (or
to such other accounts as they may direct). Except as set forth below, each
Restricted Global Security shall be in the form of the 7 3/8% Senior Notes
attached hereto is Exhibit A and may be transferred, in whole and not in part,
only to another nominee of the Depositary or to a successor of the Depositary or
its nominee.
Notwithstanding the above, Senior Notes sold to Institutional
Accredited Investors who are not Qualified Institutional Buyers shall be issued
in certificated, fully registered form (a "Restricted Physical Security"). A
Restricted Physical Security shall be subject to restrictions on transfer in
accordance with the IAI Letter that such investor shall be required to sign, a
form of which is attached hereto as Exhibit D.
Section 2.04. (a) Each Restricted Global Security, or any 7 3/8%
Senior Notes that may be issued in exchange for an interest in a Restricted
Global Security, shall be dated as provided in Section 2.03 of the Indenture,
shall mature on November 9, 2009 and shall bear interest at the rate of 7 3/8%
per annum from November 9, 1999, payable semiannually on May 9 and November 9 in
each year, commencing with May 9, 2000, until payment of the principal amount
shall have been made or duly provided for. The record dates with respect to the
interest payment dates for the 7 3/8% Senior Notes shall be May 1 and November 1
(whether or not a business day), respectively. The holder of record of 7 3/8%
Senior Notes on any record date for the payment of interest shall be entitled to
receive the interest payable on such interest payment date.
(b) Both principal of and interest on the 7 3/8% Senior Notes shall be
payable at the office of the Paying Agent in the Milwaukee, Wisconsin and the
Borough of Manhattan, The City of New York, New York or at any other office
maintained by the Company or the Guarantor, as the case may be, for such
purpose; provided that interest may be payable, at the option of the Company or
the Guarantor, as the case may be, by check mailed to the registered address of
the person entitled thereto as such address shall appear on the registry books
of the Company. On each interest payment date the Trustee shall pay to the
registered holder interest accrued in respect of such 7 3/8% Senior Notes.
Payment of principal on 7 3/8% Senior Notes shall be paid to the registered
holder or upon his order only upon presentation and surrender for payment of
such 7 3/8% Senior Notes on or after the payment date at the offices of the
Company or the Guarantor, as the case may be, in Milwaukee, Wisconsin and the
Borough of Manhattan, The City of New York, New York or at any other office of
the Company or the Guarantor, as the case may be, maintained for such purpose.
(c) The 7 3/8% Senior Notes shall not be convertible into or
exchangeable for equity securities of the Company or the Guarantor.
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(d) The 7 3/8% Senior Notes shall not be subject to any sinking fund.
(e) The 7 3/8% Senior Notes shall not be included for listing on any
national securities exchange.
(f) The Trustee, at its Corporate Trust Office located at 1555 North
RiverCenter Drive, Suite 301, Milwaukee, Wisconsin 53212, shall initially act as
Paying Agent for the Senior Notes.
Section 2.05. (a) So long as a nominee of the Depositary is the
registered owner of any Restricted Global Security, such nominee shall be
considered the sole owner and holder of the 7 3/8% Senior Notes represented by
such Restricted Global Security under the Indenture, as supplemented and amended
hereby. Except as herein provided, owners of beneficial interests in any
Restricted Global Security shall not be entitled to have 7 3/8% Senior Notes
represented by the such Restricted Global Security registered in their names,
shall not receive or be entitled to receive physical delivery of 7 3/8% Senior
Notes in certificated form and shall not be considered the owners or holders
thereof under the Indenture.
(b) None of the Company, the Guarantor or the Trustee shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in any Restricted
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
Section 2.06. In the event that either (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 135th
calendar day following the Closing Time, (b) the Exchange Offer Registration
Statement has not been declared effective on or prior to the 180th calendar day
following the Closing Time, (c) the Exchange Offer is not consummated on or
prior to the 45th calendar day following the effective date of the Exchange
Offer Registration Statement or (d) if required, the Shelf Registration
Statement is not declared effective on or prior to the 210th calendar day
following the Closing Time (each such event referred to in clauses (a) through
(d) above, a "Registration Default"), the interest rate borne by the Senior
Notes shall be increased ("Additional Interest") by one-quarter of one percent
(0.25%) per annum upon the occurrence of a Registration Default, which rate will
increase by one-quarter of one percent (0.25%) each 90-day period that such
Additional Interest continues to accrue under any such circumstance, provided
that the maximum aggregate increase in the interest rate will in no event exceed
one-half of one percent (0.5%) per annum. Following the cure of all Registration
Defaults the accrual of Additional Interest will cease and the interest rate
will revert to the original rate.
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If the Shelf Registration Statement is unusable by the Holders for any
reason after the Shelf Registration Statement has been declared effective by the
Commission, and the aggregate number of days in any consecutive twelve-month
period for which the Shelf Registration Statement shall not be usable exceeds 30
days in the aggregate, then the interest rate borne by the Senior Notes will be
increased by one-quarter of one percent (0.25%) per annum of the principal
amount of the Senior Notes for the first 90-day period (or portion thereof)
beginning on the 31st day following the date that such Shelf Registration
Statement ceases to be usable, which rate shall be increased by an additional
one-quarter of one percent (0.25%) per annum of the principal amount of the
Senior Notes at the beginning of the subsequent 90-day period, provided that the
maximum aggregate increase in the interest rate will in no event exceed one-half
of one percent (0.50%) per annum. Any amounts payable under this paragraph shall
also be deemed "Additional Interest" for purposes of the Indenture and the
Registration Rights Agreement. Upon the Shelf Registration Statement once again
becoming usable, the interest rate borne by the Senior Notes will be reduced to
the original interest rate if the Company and the Guarantor are otherwise in
compliance with this the Indenture and the Registration Rights Agreement at such
time. Additional Interest shall be computed based on the actual number of days
elapsed in each 90-day period in which the Shelf Registration Statement is
unusable.
The Company and the Guarantor shall notify the Trustee within three
business days after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "Event Date"). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the benefit
of the Holders of the Senior Notes, on or before the applicable semiannual
interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date to the record Holder of the Senior Notes entitled to
receive the interest payment to be paid on such date as set forth in the
Indenture. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the day following the applicable Event Date.
Section 2.07. The Senior Notes will be redeemable at the Company's
option in whole or in part at any time, on at least 30 days' but not more than
60 days' prior written notice mailed to the registered holders of the Senior
Notes, at a price equal to the greater of (i) 100% of the principal amount of
the Senior Notes being redeemed and (ii) the sum of the present values of the
principal amount of the Senior Notes to be redeemed and the remaining scheduled
payments of interest on the Senior Notes from the redemption date to November 9,
2009 discounted from their respective scheduled payment dates to the redemption
date semi-annually (assuming a 360-day year consisting of twelve 30-day months)
at a discount rate equal to the Treasury Yield plus 20 basis
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points, plus accrued interest on the Senior Notes to the redemption date.
"Treasury Yield" means, with respect to any redemption date, the
annual rate equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Senior Notes to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Senior Notes.
"Comparable Treasury Price" means, with respect to any date of
redemption, (1) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding the redemption date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on the business day in question, the
Reference Treasury Dealer Quotation for the redemption date.
"Independent Investment Banker" means an independent investment
banking institution of national standing appointed by the Company and reasonably
acceptable to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and redemption date, the average, as determined by the
Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount and quoted in
writing to the Company by the Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding the redemption date).
"Reference Treasury Dealer" means a primary United States government
securities dealer in New York City appointed by the Company and reasonably
acceptable to the Trustee.
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ARTICLE 3.
MISCELLANEOUS
Section 3.01. Capitalized terms used but not defined herein shall have
the respective meanings set forth in the Indenture.
Section 3.02. Except as supplemented and amended hereby, the Indenture
is in all respects ratified and confirmed, and all of the terms, provisions and
conditions thereof shall be and remain in full force and effect, and this
Supplemental Indenture and all its provisions shall be deemed a part thereof.
Section 3.03. In case any provision in this Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 3.04. If any provision of this Supplemental Indenture limits,
qualifies or conflicts with any other provision hereof or of the Indenture which
provision is required to be included in the Indenture by any of the provisions
of the Trust Indenture Act, such required provision shall control.
Section 3.05. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN WITHOUT REGARD
TO THE CONFLICTS OF LAWS AND RULES OF SAID STATE.
Section 3.06. This Supplemental Indenture has been simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument. Delivery by telecopier of an executed signature page hereto
shall be effective as delivery of a manually executed counterpart hereof.
Section 3.07. This Supplemental Indenture shall be deemed to have been
executed on the date of the acknowledgment thereof by the officer of the Trustee
who signed it on behalf of the Trustee.
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IN WITNESS WHEREOF, the Company, the Guarantor and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized and their respective corporate seals, duly attested, to be
hereunto affixed, all as of the day and year first above written.
ALLIANT ENERGY RESOURCES, INC.
ATTEST:
By:/s/ Enrique Bacalao By:Edward M. Gleason
---------------------------------- -----------------------------------
Name: Enrique Bacalao Name: Edward M. Gleason
Title: Assistant Secretary Title: Vice President - Treasurer
and Corporate Secretary
ALLIANT ENERGY CORPORATION,
ATTEST: as Guarantor
By: /s/ Enrique Bacalao By:Edward M. Gleason
---------------------------------- -----------------------------------
Name: Enrique Bacalao Name: Edward M. Gleason
Title: Assistant Secretary Title: Vice President - Treasurer
and Corporate Secretary
FIRSTAR BANK, N.A.,
as Trustee
By: /s/ Pamela Warner
-----------------------------------
Name: Pamela Warner
Title: Assistant Vice President
Attested by /s/ Yvonne Siira
Yvonne Siira
Assistant Secretary
18
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EXHIBIT A
[Form of Senior Notes]
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Alliant
Energy Resources, Inc., or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
to such other entity or in such other name as is requested by an authorized
representative of DTC (and any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
Transfers of this Global Security shall be limited to transfers in
whole, but not in part, to nominees of Cede & Co. or to a successor thereof or
such successor's nominee and transfers of portions of this Global Security shall
be limited to transfers made in accordance with the restrictions set forth in
Section 2.20 of the Indenture referred to in this Global Security.
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" ("QIB") (AS DEFINED IN RULE 144A ("RULE 144A") UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT (2) AGREES NOT TO OFFER, SELL OR OTHERWISE
TRANSFER THIS NOTE PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE LAST DATE ON WHICH ALLIANT
ENERGY RESOURCES, INC. OR ANY "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE
SECURITIES ACT) OF ALLIANT ENERGY RESOURCES,
<PAGE>
INC. WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) OR (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE
RESTRICTION TERMINATION DATE") EXCEPT (A) TO ALLIANT ENERGY RESOURCES, INC., (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO
AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS
(a)(1), (2), (3) or (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER
OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT
OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT SUBJECT IN EACH OF THE FOREGOING CASES OF ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH
INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT ALLIANT ENERGY
RESOURCES, INC. AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, BUT ONLY IF THIS NOTE IS NOT A
GLOBAL SECURITY (AS DEFINED IN THE INDENTURE REFERRED TO HEREIN), TO REQUIRE
THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO ALLIANT ENERGY RESOURCES,
INC. AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
2
<PAGE>
ALLIANT ENERGY RESOURCES, INC.
7 3/8% SENIOR NOTES DUE 2009
CUSIP No. 018803AA4
$250,000,000
Global Note
Alliant Energy Resources, Inc., a corporation duly organized and
existing under the laws of the State of Wisconsin (the "Company," which term
includes any successor person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of TWO HUNDRED FIFTY MILLION DOLLARS ($ 250,000,000) on November
9, 2009, at the office or agency of the Company referred to below, in such coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts, and to pay interest thereon
in like coin or currency from November 9, 1999, or from the most recent interest
payment date on which interest has been paid or duly provided for, semi-annually
in arrears on May 9 and November 9 in each year, commencing May 9, 2000, at the
rate of 7 3/8% per annum, until the principal hereof is paid or made available
for payment, and (to the extent lawful) to pay interest at the same rate per
annum on any overdue principal and premium and on any overdue installment of
interest until paid.
Interest so payable, and punctually paid or duly provided for, on any
Interest payment date, as provided in the Indenture, shall be paid to the person
in whose name this Senior Note (or one or more predecessor Senior Notes) is
registered at the close of business on the record date for such interest, which
shall be May 1 or November 1 (whether or not a business day), as the case may
be, next preceding such Interest payment date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
person in whose name this Senior Note is registered on such record date and may
either be paid to the person in whose name this Senior Note is registered at the
close of business on a record date for the payment of such defaulted interest to
be fixed by the Trustee, notice whereof shall be given to the person in whose
name this Senior Note is registered not less than ten days prior to such record
date, or be paid at any time in any other lawful manner, all as more fully
provided in the Indenture.
This Senior Note is a "book-entry" security and is being registered in
the name of Cede & Co. as nominee of The Depository Trust Company ("DTC"), a
clearing agency. Subject to the terms of the Indenture, dated as of November 4,
1999 (as supplemented by the First Supplemental Indenture dated as of November
4, 1999 and as supplemented and amended from time to time, the "Indenture"),
among the Company,
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<PAGE>
Alliant Energy Corporation (the "Guarantor"), and Firstar Bank, N.A., as trustee
(the "Trustee"), and except as provided therein, this Senior Note will be held
by a clearing agency or its nominee, and beneficial interests will be held by
beneficial owners through the book-entry facilities of such clearing agency or
its nominee in minimum denominations of $1,000 and increments of $1,000 in
excess thereof.
The statements set forth in the restrictive legend above are an
integral part of the terms of this Senior Note and by acceptance hereof each
holder of this Senior Note agrees to be subject to and bound by the terms and
provisions set forth in such legend.
The Trustee will make payments of principal of and interest on (except
as otherwise provided below) this Senior Note by wire transfer of immediately
available funds. Notwithstanding the above, the final payment on this Senior
Note will be made after due notice by the Trustee of the pendency of such
payment and only upon presentation and surrender of this Senior Note at its
principal corporate trust office or such other offices or agencies appointed by
the Trustee for that purpose and such other locations provided in the Indenture.
Payments of principal of (and premium, if any) and interest on this
Senior Note will be made at the offices or agency of the Company or the
Guarantor, as the case may be, maintained for that purpose in Milwaukee,
Wisconsin and the Borough of Manhattan, The City of New York, New York in such
coin or currency of the United States of America as at the time of payment is
legal tender for payments of public and private debts; provided, however, that
at the option of the Company or the Guarantor, as the case may be, payment of
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the register of the Company.
This Senior Note is one of a duly authorized issue of Securities of
the Company, designated 7 3/8% Senior Notes due 2009 (the "7 3/8% Senior Notes"
or the "Senior Notes"), limited in aggregate principal amount at any time
outstanding to TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) which may be
issued under the First Supplemental Indenture. Reference is hereby made to the
Indenture, the First Supplemental Indenture and all indentures supplemental
thereto for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Guarantor, the Trustee
and the Holders of the Senior Notes, and the terms upon which the Senior Notes
are, and are to be, authenticated and delivered. All terms used in this Senior
Note that are defined in the Indenture shall have the meanings assigned to them
in the Indenture.
The Holder of this Senior Note is entitled to the benefits of the
Registration Rights Agreement, dated as of November 9, 1999 (the "Registration
Rights
4
<PAGE>
Agreement"), among the Company, the Guarantor and the initial purchasers named
therein (the "Initial Purchasers"). In the event that (i) the Company and the
Guarantor fails to file an Exchange Offer Registration Statement with respect to
the Senior Notes with the Securities and Exchange Commission (the "Commission")
on or prior to the 135th calendar day following the Closing Time, (ii) the
Commission does not declare such Exchange Offer Registration Statement effective
on or prior to the 180th calendar day following the Closing Time, (iii) the
Exchange Offer is not consummated on or prior to the 45th calendar day following
the effective date of the Exchange Offer Registration Statement or (iv) if
required, a Shelf Registration Statement with respect to the Senior Notes is not
declared effective by the Commission on or prior to the 210th calendar day
following the Closing Time (each, a "Registration Default"), the per annum
interest rate borne by the Senior Notes shall be increased by one-quarter of one
percent (0.25%) per annum for the first 90-day period following the Registration
Default. The interest rate borne by the Senior Notes will be increased by an
additional one-quarter of one percent (0.25%) per annum for the subsequent
90-day period (or portion thereof) during which any such Registration Default
continues up to a maximum aggregate increase in the annual interest rate of
one-half of one percent (0.50%) per annum. Following the cure of all
Registration Defaults, the interest rate borne by the Senior Notes shall be
reduced to the original interest rate borne by the Senior Notes. If the Shelf
Registration Statement is unusable by the Holders for any reason after the Shelf
Registration Statement has been declared effective by the Commission, and the
aggregate number of days in any consecutive twelve-month period for which the
Shelf Registration is unusable exceeds 30 days in the aggregate, then the
interest rate borne by the Senior Notes will be increased by one-quarter of one
percent (0.25%) per annum of the principal amount of the Senior Notes for the
first 90-day period (or a portion thereof) beginning the 31st day following the
date that such Shelf Registration Statement ceases to be usable, which rate
shall be increased by an additional one-quarter of one percent (0.25%) per annum
of the principal amount of Senior Notes at the beginning of the subsequent
90-day period, provided that the maximum aggregate increase in the interest rate
will in no event exceed one-half of one percent (0.50%) per annum. All accrued
additional interest shall be paid to Holders by the Company in the same manner
and at the same time as interest is paid pursuant to the Indenture. All terms
used in this Senior Note that are defined in the Registration Rights Agreement
shall have the meanings assigned to them in the Registration Rights Agreement.
Each purchaser of Senior Notes, by its acquisition thereof, will be
deemed to have acknowledged, represented to and agreed with the Initial
Purchasers, the Company and the Guarantor as follows:
5
<PAGE>
(1) Such purchaser understands and acknowledges that the
Senior Notes have not been registered under the Securities Act or any
other applicable securities laws, are being offered for resale in
transactions not requiring registration under the Securities Act or
any other securities laws including sales pursuant to Rule 144A under
the Securities Act, and may not be offered, sold or otherwise
transferred except in compliance with the registration requirements of
the Securities Act or any other applicable securities law, or pursuant
to an exemption therefrom or in a transaction not subject thereto, and
in each case in compliance with the conditions for transfer set forth
in paragraph (4) below.
(2) Such purchaser is not an "affiliate" (as defined in Rule
144 under the Securities Act) of the Company and it is either:
(a) a QIB and is aware that any sale of Senior
Notes to it will be made in reliance on Rule 144A and such
acquisition will be for its own account or for the account
of another QIB with respect to which it exercises sole
investment discretion and to whom it has given notice that
the Senior Notes are being sold in reliance on Rule 144A; or
(b) an Institutional Accredited Investor and, if
the Senior Notes are to be purchased for one or more
accounts ("investor accounts") for which it is acting as
fiduciary or agent, each such investor account is an
Institutional Accredited Investor on a like basis; in the
normal course of its business, it invests in or purchases
securities similar to the Senior Notes and such purchaser
has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and
risks of purchasing any of the Senior Notes and it is aware
that it (or any such investor account) may be required to
bear the economic risk of an investment in the Senior Notes
for an indefinite period of time and it (or such investor
account) is able to bear such risk for an indefinite period
and such purchaser has agreed to deliver a letter
substantially in the form of Exhibit D to the First
Supplemental Indenture to the Company.
(3) Such purchaser acknowledges that none of the Company,
the Guarantor or the Initial Purchasers, or any person representing
the Company, the Guarantor or the Initial Purchasers, has made any
representation to it with respect to the Company, the Guarantor or the
offering or sale of any Senior Notes other than the information
contained in the Offering Memorandum, which has been delivered to it
and upon which such purchaser is relying in making its investment
decision with respect to the Senior Notes. Accordingly, such purchaser
acknowledges that no representation or warranty is made by the Initial
Purchasers
6
<PAGE>
as to the accuracy or completeness of such materials. Such purchaser
has had access to such financial and other information concerning the
Company, the Guarantor and the Senior Notes (and the Guarantees) as it
has deemed necessary in connection with its decision to purchase any
of the Senior Notes, including an opportunity to ask questions of and
request information from the Initial Purchasers, the Company and the
Guarantor.
(4) Such purchaser is purchasing the Senior Notes for its
own account, or for one or more investor accounts for which it is
acting as a fiduciary or agent, in each case for investment, and not
with a view to, or for offer or sale in connection with, any
distribution thereof in violation of the Securities Act, subject to
any requirement of law that the disposition of its property or the
property of such investor account or accounts be at all times within
its or their control and subject to its or their ability to resell
such Senior Notes pursuant to Rule 144A or any exemption from
registration available under the Securities Act or pursuant to a
registration statement which has been declared effective under the
Securities Act. Such purchaser agrees on its own behalf and on behalf
of any investor account for which it is purchasing the Senior Notes,
and each subsequent holder of the Senior Notes by its acceptance
thereof will be deemed to agree, to offer, sell or otherwise transfer
the Senior Notes prior to (x) the date which is two years (or such
shorter period of time as permitted by Rule 144(k) under the
Securities Act) after the later of the date of original issue of the
Senior Notes and the last date on which the Company or any of its
"affiliates" (as defined in Rule 144 under the Securities Act) was the
owner of the Senior Notes (or any predecessor thereto) or (y) such
later date, if any, as may be required by applicable law (the "Resale
Restriction Termination Date"), only (a) to the Company, (b) pursuant
to a registration statement which has been declared effective under
the Securities Act, (c) for so long as the Senior Notes are eligible
for resale pursuant to Rule 144A to a person it reasonably believes is
a QIB that purchases for its own account or for the account of a QIB,
in each case to whom notice is given that the transfer is being made
in reliance on Rule 144A, (d) to an Institutional Accredited Investor
that is acquiring the Senior Notes for its own account or for the
account of such an Institutional Accredited Investor for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act or (e)
pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing
cases to any requirement of law that the disposition of its property
or the property of such investor account or accounts be at all times
within its or their control and to compliance with any applicable
state or other securities laws. If any resale or transfer of the
Senior Notes is proposed to be made pursuant to clause (d) above
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<PAGE>
prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of
Exhibit D to the First Supplemental Indenture to the Company and the
Trustee. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. Each purchaser
of Senior Notes acknowledges that the Company, the Guarantor and the
Trustee reserve the right prior to any offer, sale or other transfer
of Senior Notes prior to the Resale Restriction Termination Date
pursuant to clauses (d) or (e), above, to require the delivery of an
opinion of counsel, certifications and/or other information
satisfactory to them and the Trustee. Each purchaser of Senior Notes
acknowledges that each Senior Note will contain a legend substantially
in the form on the face of this Senior Note unless otherwise agreed by
the Company, the Guarantor and the Trustee.
(5) Such purchaser acknowledges that the Company, the
Guarantor, the Initial Purchasers, the Trustee and others will rely
upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements and agree that, if any of the
acknowledgments, representations, warranties and agreements deemed to
have been made by its purchase of the notes are no longer accurate, it
shall promptly notify the Initial Purchasers. If such purchaser is
acquiring any notes as a fiduciary or agent for one or more investor
accounts, it represents that it has sole investment discretion with
respect to each such account and it has full power to make the
foregoing acknowledgments, representations and agreements on behalf of
each such account and that each such investor account is eligible to
purchase the notes.
(6) Such purchaser acknowledges that the Trustee, the
transfer agent and the registrar will not be required to accept for
registration of transfer any notes acquired by it, except upon
presentation of evidence satisfactory to the Company and the Trustee
that the restrictions set forth above have been complied with.
(7) Such purchaser acknowledges that the foregoing
restrictions apply to holders of beneficial interests in the Senior
Notes, as well as the holders of the Senior Notes.
The Senior Notes do not have the benefit of any sinking fund
obligations and shall not be repayable at the option of the Holder prior to
maturity.
The Senior Notes may be redeemed at the Company's option, in whole or
in part, at any time on at least 30 days', but not more than 60 days', prior
written notice mailed to the registered holders of the Senior Notes, at a price
equal to the greater of (a) 100% of the principal amount of the Senior Notes
being redeemed and (b) the sum of the
8
<PAGE>
present values of the principal amount of the Senior Notes to be redeemed and
the remaining scheduled payments of interest on the Senior Notes from the
redemption date to November 9, 2009 discounted from their respective scheduled
payment dates to the redemption date semi-annually (assuming a 360-day year
consisting of twelve 30-day months) at a discount rate equal to the equivalent
yield to maturity of a comparable treasury security plus 20 basis points, plus
accrued interest on the Senior Notes to the redemption date.
If an Event of Default shall occur and be continuing, the principal of
all the Senior Notes may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company (and the Guarantor) under this Senior
Note and (b) certain restrictive covenants and the related defaults and Events
of Default applicable to the Company and the Guarantor, in each case, upon
compliance by the Company and the Guarantor with certain conditions set forth in
the Indenture, which provisions apply to this Senior Note.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Senior Notes
under the Indenture at any time by the Company, the Guarantor and the Trustee
with the consent of the Holders of a majority in aggregate principal amount of
the Senior Notes at the time outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Senior Notes at the time outstanding, on behalf of the Holders of all Senior
Notes, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Senior Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Senior Note and of any Senior Note issued upon the registration of transfer
thereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Senior Note.
No reference herein to the Indenture and provision of this Senior Note
or of the Indenture shall alter or impair the obligation of the Company and the
Guarantor, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Senior Note at the times, place and rate,
and in the coin or currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations on
transfer of this Senior Note by DTC or its nominee, the transfer of this Senior
Note is registrable by the Registrar, upon surrender of this Senior Note for
registration of transfer at the office or agency of the Company or the
Guarantor, as the case may be, in Milwaukee, Wisconsin and the Borough of
Manhattan, The City of New York, New York, duly endorsed by, or accompanied by
the written instrument of transfer attached hereto duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Senior Notes, of authorized denominations and for the same aggregate principal
amount, shall be issued to the designated transferee or transferees.
The Senior Notes are issuable only in fully registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Senior Notes are exchangeable for a like aggregate principal amount of
Senior Notes of different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange of Senior Notes, but the Company and the Guarantor may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Senior Note for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the person in whose name this Senior Note
is registered as the owner hereof for all purposes, whether or not this Senior
Note be overdue, and none of the Company, the Guarantor, the Trustee or any such
agent shall be affected by notice to the contrary.
Interest on this Senior Note shall be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall furnish to any Holder of record of Senior Notes,
upon written request and without charge, a copy of the Indenture.
The Indenture and this Senior Note each shall be governed by and
construed in accordance with the laws of the State of Wisconsin without regard
to principles of conflicts of law.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Senior Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
10
<PAGE>
In Witness Whereof, Alliant Energy Resources, Inc. has caused this
Senior Note to be signed in its corporate name by the facsimile signature of two
of its officers thereonto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted or otherwise reproduced hereon.
ALLIANT ENERGY RESOURCES, INC.
ATTEST:
By:_________________________________ By:___________________________________
Name: Name:
Title: Title:
11
<PAGE>
FOR VALUE RECEIVED, the Guarantor, hereby unconditionally guarantees
to the Holder of the Security upon which this Guarantee is endorsed the due and
punctual payment of the principal, of premium, if any, or interest on said
Security, when and as the same shall be become due and payable, whether at
maturity, upon redemption or otherwise, according to the terms thereof and of
the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to
the date upon which a payment of principal, of premium, if any, or interest on
said Security is due and payable, whether the Company has available the funds to
make such payment as the same shall become due and payable. In case of the
failure of the Company punctually to pay any such principal, premium, if any, or
interest, the Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise, and as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable and absolute, irrespective of the validity,
regularity or enforceability of said Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of said
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to said Security or indebtedness evidenced
thereby, and all demands whatsoever and covenants that this Guarantee will not
be discharged except by complete performance of the obligations contained in
said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of said
Security against the Company in respect to any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the Holders of all of the Securities
then outstanding, be entitled to enforce or to receive any payments arising out
of or based upon such right of subrogation until the principal of and premium,
if any, and interest on all Securities shall have been paid in full or payment
thereof shall have been provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal or interest by the Company on the Securities
to the Holders of
12
<PAGE>
the Securities it is determined by a final decision of a court of competent
jurisdiction that such payment shall be avoided by a trustee in bankruptcy
(including any debtor-in-possession) as a preference under 11 U.S.C. Section 547
and such payment is paid by such Holder to such trustee in bankruptcy, then and
to the extent of such repayment the obligations of the Guarantor hereunder shall
remain in full force and effect.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Security until a certificate of authentication on such
Security shall have been signed by the Trustee (or the authenticating agent).
This Guarantee shall be governed by the laws of the State of
Wisconsin.
IN WITNESS WHEREOF, ALLIANT ENERGY CORPORATION has caused this
Guarantee to be signed in its corporate name by the signature of two of its
officers thereunto duly authorized and has caused its corporate seal to be
affixed hereto or imprinted or otherwise reproduced hereon.
ALLIANT ENERGY CORPORATION,
as Guarantor
ATTEST:
By:_________________________________ By:__________________________________
Name: Name:
Title: Title:
13
<PAGE>
TRUSTEE CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes described in the within-named
Indenture.
FIRSTAR BANK, N.A.,
as Trustee
By:________________________________
Name:
Title:
14
<PAGE>
EXHIBIT B
Annex A
[FORM OF TRANSFER CERTIFICATE]
Alliant Energy Resources, Inc. (the "Company")
Alliant Energy Corporation, as Guarantor (the "Guarantor")
Firstar Bank, N.A., as Trustee (the "Trustee")
Re: 7 3/8% Senior Notes Due 2009
Reference is hereby made to the Indenture, dated as of November 4,
1999 (as supplemented by the First Supplemental Indenture dated as of November
4, 1999, and as supplemented and amended from time to time, the "Indenture"),
between the Company, the Guarantor and the Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture. Other
terms shall have the meanings given to them in Rule 144A ("Rule 144A") under the
Securities Act of 1933, as amended (the "Securities Act").
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
(Print or type name and address of transferee, including ZIP code)
------------------------------------------------------------
(Taxpayer Identification Number of transferee)
the within Senior Note and all rights thereunder, hereby irrevocably
constituting and appointing ____________________ attorney-in-fact to transfer
said Senior Note on the books of the Company with full power of substitution in
the premises.
In connection with any transfer of this Senior Note occurring prior to
the date that is the earlier of the date of an effective Shelf Registration
Statement or the
<PAGE>
Resale Restriction Termination Date, the undersigned confirms that without
utilizing any general solicitation or general advertising:
[Check One]
____ Such Senior Note is being transferred in accordance with (i)
the transfer restrictions set forth in the Indenture and the
Senior Notes (and such transfer is subject to the right of
the Company and the Trustee to require additional
information from the undersigned, including, without
limitation, an opinion of counsel) and (ii) Rule 144A under
the Securities Act to a transferee that the transferor
reasonably believes is purchasing the Senior Notes for its
own account or an account with respect to which the
transferee exercises sole investment discretion, and the
transferee and any such account is a "Qualified
Institutional Buyer" within the meaning of Rule 144A or an
Institutional Accredited Investor within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is
acquiring the Senior Note for its own account or for the
account of such an investor for investment purposes and not
with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act, and such
transferee is aware that the sale to it is being made in
reliance upon Rule 144A or Regulation D, as the case may be,
in each case in a transaction meeting the requirements of
Rule 144A or Regulation D, as the case may be, and in
accordance with any applicable securities laws of any state
of the United States or any other jurisdiction.
or
____ Such Senior Note is being transferred pursuant to an
exemption from registration under the Securities Act
provided by Rule 144 thereunder upon provision of an opinion
of counsel and such other evidence acceptable to the Company
that such offer, sale, pledge or transfer is in compliance
with the Securities Act and other applicable laws, in each
case in a form satisfactory to the Company.
or
____ Such Senior Note is being transferred in a transaction other
than in accordance with the above upon provision of a legal
opinion and
2
<PAGE>
other evidence requested by the Company in form and
substance satisfactory to the Company, to the effect that
the proposed transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or other
Registrar shall not be obligated to register this Senior Note in the name of any
person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.20 of the Indenture
shall have been satisfied.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Initial Purchaser named in the Offering
Memorandum distributed by the Company and the Guarantor in connection with the
initial sale of the Senior Notes.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated: ____________________
(N.B.: The signature to this assignment must correspond with the name as written
upon the face of the within-mentioned instrument in every particular, without
alteration or any change whatsoever)
TO BE COMPLETED BY PURCHASER IF THE FIRST OPTION ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such
3
<PAGE>
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this
Senior Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act or
an "institutional accredited investor" within the meaning of Rule 501 under the
Securities Act and to the extent the undersigned is a "qualified institutional
buyer," the undersigned acknowledges that it has received such information
regarding the Company and the Guarantor as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Date:___________________________
(NOTICE: To be executed by an executive officer)
PAYMENT INSTRUCTIONS
The assignee should include the following for purposes of payment:
Payment shall be made, by wire transfer or otherwise, in immediately
available funds, to _____________________, for the account of
___________________, account number ___________, or, if mailed, by check to
_____________________. Applicable reports and statements should be mailed to
_____________________. This information is provided by _____________________,
the assignee named above, or _____________________, as its agent.
4
<PAGE>
EXHIBIT C
FORM OF EXCHANGE CERTIFICATE
Alliant Energy Resources, Inc. (the "Company")
Alliant Energy Corporation, as guarantor (the "Guarantor")
Firstar Bank, N.A., as Trustee (the "Trustee")
RE: Alliant Energy Resources, Inc. 7 3/8% Senior Notes Due 2009 (the "Senior
Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of November 4, 1999 (as
supplemented by the First Supplemental Indenture dated as of November 4, 1999
and as further supplemented and amended from time to time, the "Indenture"),
among the Company, the Guarantor, and the Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture. Other
terms shall have the meanings given to them in Rule 144A ("Rule 144A") under the
Securities Act of 1933, as amended (the "Securities Act").
In connection with our proposed sale of $_________ aggregate principal
amount of Senior Notes, we confirm that such sale has been effected pursuant to
and in accordance with Rule 144A. We are aware that the transfer of the Senior
Notes to us is being made in reliance on the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A. Prior to the date of this
Certificate, we have been given the opportunity to obtain from the Company and
the Guarantor the information referred to in Rule 144A(d)(4), and have either
declined such opportunity or have received such information.
<PAGE>
Each of you is entitled to rely upon this Certificate and is irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
Very truly yours,
[Name of Purchaser]
By:_________________________________
Name:
Title:
Dated: _________________________
2
<PAGE>
IAI Letter
FORM OF PURCHASE LETTER FOR
INSTITUTIONAL ACCREDITED INVESTORS
Alliant Energy Resources, Inc.
222 West Washington Avenue
Madison, Wisconsin 53703
Merrill Lynch & Co.
c/o Merrill Lynch & Co.
World Financial Center
North Tower
New York, NY 10281-1237
Dear Ladies and Gentlemen:
The undersigned is delivering this letter in connection with an
offering of 7 3/8% Senior Notes due 2009 (the "Senior Notes") of Alliant Energy
Resources, Inc. (the "Company") all as described in the Offering Memorandum (the
"Offering Memorandum") relating to the offering.
The undersigned hereby confirms, represents and warrants that:
(i) The undersigned is an "institutional accredited investor" within
the meaning of Rule 501(a)(1), (2) or (3) under the Securities
Act of 1933 (the "Securities Act") or an entity in which all of
the equity owners are accredited investors within the meaning of
Rule 501(a)(1), (2) or (3) under the Securities Act (an
"Institutional Accredited Investor");
(ii) (A) any purchase of the Senior Notes by the undersigned will be
for the undersigned's own account or for the account of one or
more other Institutional Accredited Investors or as fiduciary for
the account of one or more trusts, each of which is an
"institutional accredited investor" within the meaning of Rule
501(a)(7) under the Securities Act and for each of which the
undersigned exercises
<PAGE>
sole investment discretion or (B) the undersigned is a "bank,"
within the meaning of Section 3(a)(2) of the Securities Act, or a
"savings and loan association" or other institution described in
Section 3(a)(5)(A) of the Securities Act that is acquiring the
Senior Notes as fiduciary for the account of one or more
institutions for which the undersigned exercises sole investment
discretion;
(iii)In the event that the undersigned purchases any Senior Notes, the
undersigned will acquire the Senior Notes having a minimum
principal amount of not less than $100,000 for its own account or
for any separate account for which the undersigned is acting;
(iv) The undersigned has such knowledge and experience in financial
and business matters that the undersigned is capable of
evaluating the merits and risks of purchasing the Senior Notes;
(v) The undersigned is not acquiring the Senior Notes with a view to
distribution thereof or with any present intention of offering or
selling the Senior Notes, except as permitted below; provided
that the disposition of the undersigned's property and property
of any accounts for which the undersigned is acting as fiduciary
shall remain at all times within the undersigned's control; and
(vi) The undersigned has received a copy of the Offering Memorandum
and acknowledges that the undersigned has access to such
financial and other information, and has been afforded the
opportunity to ask such questions of representatives of the
Company and receive answers thereto, as the undersigned deems
necessary in connection with its decision to purchase the Senior
Notes.
The undersigned understands that the Senior Notes are being offered in
a transaction not involving any public offering within the United States within
the meaning of the Securities Act and that the Senior Notes have not been
registered under the Securities Act or any applicable state securities laws, and
the undersigned agrees, on its own behalf and on behalf of each account for
which the undersigned acquires any Senior Notes, that if in the future the
undersigned decides to resell or otherwise transfer such Senior Notes, such
Senior Notes may be resold or otherwise transferred only (a) to the Company or
any subsidiary thereof, (b) inside the United States to a person who is a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) in a transaction meeting the requirements of Rule 144A, (c) inside the
United States to an
2
<PAGE>
Institutional Accredited Investor that, prior to such transfer, furnishes to the
trustee (or transfer agent, as the case may be) for such Senior Notes a signed
letter containing certain representations and agreements relating to the
restrictions on transfer of such Senior Notes (the form of which letter can be
obtained from such Trustee), (d) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if applicable) or (e) pursuant to
a registration statement which has been declared effective under the Securities
Act. The undersigned agrees that any such transfer of Senior Notes referred to
in this paragraph shall be in accordance with applicable securities laws of any
state of the United States or any other applicable jurisdiction and in
accordance with the legends set forth on the Senior Notes, and that it has
provided the Company with a written opinion of legal counsel who is acceptable
to the Company to the effect that, and such other certification or information
as the Company may reasonably require to confirm that, the proposed transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act. The undersigned further
agrees to provide any person purchasing any of the Senior Notes from the
undersigned a notice advising such purchaser that resales of such Senior Notes
are restricted as stated herein (unless the sale of securities has been
registered under the Securities Act). The undersigned understands that the
registrar and transfer agent for the Senior Notes will not be required to accept
for registration of transfer any Senior Notes, except upon presentation of
evidence satisfactory to the Company that the foregoing restrictions on transfer
have been complied with. The undersigned further understands that any Senior
Notes will be in the form of definitive physical certificates and that such
certificates will bear a legend (unless the sale of the Senior Notes has been
registered under the Securities Act) reflecting the substance of this paragraph.
The undersigned acknowledges that the Company, the Guarantor, others
and you will rely upon the undersigned's confirmations, acknowledgments and
agreements set forth herein, and the undersigned agrees to notify you promptly
in writing if any of its representations or warranties herein ceases to be
accurate and complete.
THE LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF WISCONSIN.
- ------------------------------------------
(Name of Purchaser)
By:_______________________________________
Name:____________________________________
3
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Alliant
Energy Resources, Inc., or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
to such other entity or in such other name as is requested by an authorized
representative of DTC (and any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
Transfers of this Global Security shall be limited to transfers in
whole, but not in part, to nominees of Cede & Co. or to a successor thereof or
such successor's nominee.
ALLIANT ENERGY RESOURCES, INC.
7 3/8% SENIOR NOTES DUE 2009
GLOBAL NOTE
CUSIP No. 18803AC0
$-------------
Alliant Energy Resources, Inc., a corporation duly organized and
existing under the laws of the State of Wisconsin (the "Company," which term
includes any successor person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of _____________ DOLLARS ($ _____________) on November 9, 2009, at
the office or agency of the Company referred to below, in such coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts, and to pay interest thereon in like
coin or currency from November 9, 1999, or from the most recent interest payment
date on which interest has been paid or duly provided for, semi-annually in
arrears on May 9 and November 9 in each year, commencing May 9, 2000, at the
rate of 7 3/8% per annum, until the principal hereof is paid or made available
for payment, and (to the extent lawful) to pay interest at the same rate per
annum on any overdue principal and premium and on any overdue installment of
interest until paid.
<PAGE>
Interest so payable, and punctually paid or duly provided for, on any
Interest payment date, as provided in the Indenture, shall be paid to the person
in whose name this Senior Note (or one or more predecessor Senior Notes) is
registered at the close of business on the record date for such interest, which
shall be May 1 or November 1 (whether or not a business day), as the case may
be, next preceding such Interest payment date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
person in whose name this Senior Note is registered on such record date and may
either be paid to the person in whose name this Senior Note is registered at the
close of business on a record date for the payment of such defaulted interest to
be fixed by the Trustee, notice whereof shall be given to the person in whose
name this Senior Note is registered not less than ten days prior to such record
date, or be paid at any time in any other lawful manner, all as more fully
provided in the Indenture.
This Senior Note is a "book-entry" security and is being registered in
the name of Cede & Co. as nominee of The Depository Trust Company ("DTC"), a
clearing agency. Subject to the terms of the Indenture, dated as of November 4,
1999 (as supplemented by the First Supplemental Indenture dated as of November
4, 1999 and as supplemented and amended from time to time, the "Indenture"),
among the Company, Alliant Energy Corporation (the "Guarantor"), and Firstar
Bank, N.A., as trustee (the "Trustee"), and except as provided therein, this
Senior Note will be held by a clearing agency or its nominee, and beneficial
interests will be held by beneficial owners through the book-entry facilities of
such clearing agency or its nominee in minimum denominations of $1,000 and
increments of $1,000 in excess thereof.
The Trustee will make payments of principal of and interest on (except
as otherwise provided below) this Senior Note by wire transfer of immediately
available funds. Notwithstanding the above, the final payment on this Senior
Note will be made after due notice by the Trustee of the pendency of such
payment and only upon presentation and surrender of this Senior Note at its
principal corporate trust office or such other offices or agencies appointed by
the Trustee for that purpose and such other locations provided in the Indenture.
Payments of principal of (and premium, if any) and interest on this
Senior Note will be made at the offices or agency of the Company or the
Guarantor, as the case may be, maintained for that purpose in Milwaukee,
Wisconsin and the Borough of Manhattan, The City of New York, New York in such
coin or currency of the United States of America as at the time of payment is
legal tender for payments of public and private debts; provided, however, that
at the option of the Company or the Guarantor, as the case may be, payment of
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the register of the Company.
<PAGE>
This Senior Note is one of a duly authorized issue of Securities of
the Company, designated 7 3/8% Senior Notes due 2009 (the "7 3/8% Senior Notes"
or the "Senior Notes"), limited in aggregate principal amount at any time
outstanding to _____________ DOLLARS ($ _____________) which may be issued under
the First Supplemental Indenture. Reference is hereby made to the Indenture, the
First Supplemental Indenture and all indentures supplemental thereto for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Guarantor, the Trustee and the
Holders of the Senior Notes, and the terms upon which the Senior Notes are, and
are to be, authenticated and delivered. All terms used in this Senior Note that
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
The Senior Notes do not have the benefit of any sinking fund
obligations and shall not be repayable at the option of the Holder prior to
maturity.
The Senior Notes may be redeemed at the Company's option, in whole or
in part, at any time on at least 30 days', but not more than 60 days', prior
written notice mailed to the registered holders of the Senior Notes, at a price
equal to the greater of (a) 100% of the principal amount of the Senior Notes
being redeemed and (b) the sum of the present values of the principal amount of
the Senior Notes to be redeemed and the remaining scheduled payments of interest
on the Senior Notes from the redemption date to November 9, 2009 discounted from
their respective scheduled payment dates to the redemption date semi-annually
(assuming a 360-day year consisting of twelve 30-day months) at a discount rate
equal to the equivalent yield to maturity of a comparable treasury security plus
20 basis points, plus accrued interest on the Senior Notes to the redemption
date.
If an Event of Default shall occur and be continuing, the principal of
all the Senior Notes may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company (and the Guarantor) under this Senior
Note and (b) certain restrictive covenants and the related defaults and Events
of Default applicable to the Company and the Guarantor, in each case, upon
compliance by the Company and the Guarantor with certain conditions set forth in
the Indenture, which provisions apply to this Senior Note.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company
<PAGE>
and the Guarantor and the rights of the Holders of the Senior Notes under the
Indenture at any time by the Company, the Guarantor and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the Senior
Notes at the time outstanding. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal amount of the Senior
Notes at the time outstanding, on behalf of the Holders of all Senior Notes, to
waive compliance by the Company and the Guarantor with certain provisions of the
Indenture and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Senior Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Senior Note and
of any Senior Note issued upon the registration of transfer thereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Senior Note.
No reference herein to the Indenture and provision of this Senior Note
or of the Indenture shall alter or impair the obligation of the Company and the
Guarantor, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Senior Note at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations on
transfer of this Senior Note by DTC or its nominee, the transfer of this Senior
Note is registrable by the Registrar, upon surrender of this Senior Note for
registration of transfer at the office or agency of the Company or the
Guarantor, as the case may be, in Milwaukee, Wisconsin and the Borough of
Manhattan, The City of New York, New York, duly endorsed by, or accompanied by
the written instrument of transfer attached hereto duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Senior Notes, of authorized denominations and for the same aggregate principal
amount, shall be issued to the designated transferee or transferees.
The Senior Notes are issuable only in fully registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Senior Notes are exchangeable for a like aggregate principal amount of
Senior Notes of different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange of Senior Notes, but the Company and the Guarantor may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
<PAGE>
Prior to due presentment of this Senior Note for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the person in whose name this Senior Note
is registered as the owner hereof for all purposes, whether or not this Senior
Note be overdue, and none of the Company, the Guarantor, the Trustee or any such
agent shall be affected by notice to the contrary.
Interest on this Senior Note shall be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall furnish to any Holder of record of Senior Notes,
upon written request and without charge, a copy of the Indenture.
The Indenture and this Senior Note each shall be governed by and
construed in accordance with the laws of the State of Wisconsin without regard
to principles of conflicts of law.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Senior Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
<PAGE>
In Witness Whereof, Alliant Energy Resources, Inc. has caused this
Senior Note to be signed in its corporate name by the facsimile signature of two
of its officers thereonto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted or otherwise reproduced hereon.
ALLIANT ENERGY RESOURCES, INC.
ATTEST:
By:_________________________ By:________________________________
Name: Name:
Title: Title:
<PAGE>
FOR VALUE RECEIVED, the Guarantor, hereby unconditionally guarantees
to the Holder of the Security upon which this Guarantee is endorsed the due and
punctual payment of the principal, of premium, if any, or interest on said
Security, when and as the same shall be become due and payable, whether at
maturity, upon redemption or otherwise, according to the terms thereof and of
the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to
the date upon which a payment of principal, of premium, if any, or interest on
said Security is due and payable, whether the Company has available the funds to
make such payment as the same shall become due and payable. In case of the
failure of the Company punctually to pay any such principal, premium, if any, or
interest, the Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise, and as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable and absolute, irrespective of the validity,
regularity or enforceability of said Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of said
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to said Security or indebtedness evidenced
thereby, and all demands whatsoever and covenants that this Guarantee will not
be discharged except by complete performance of the obligations contained in
said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of said
Security against the Company in respect to any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the Holders of all of the Securities
then outstanding, be entitled to enforce or to receive any payments arising out
of or based upon such right of subrogation until the principal of and premium,
if any, and interest on all Securities shall have been paid in full or payment
thereof shall have been provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal or interest by the Company on the Securities
to the Holders of
<PAGE>
the Securities it is determined by a final decision of a court of competent
jurisdiction that such payment shall be avoided by a trustee in bankruptcy
(including any debtor-in-possession) as a preference under 11 U.S.C. Section 547
and such payment is paid by such Holder to such trustee in bankruptcy, then and
to the extent of such repayment the obligations of the Guarantor hereunder shall
remain in full force and effect.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Security until a certificate of authentication on such
Security shall have been signed by the Trustee (or the authenticating agent).
This Guarantee shall be governed by the laws of the State of
Wisconsin.
IN WITNESS WHEREOF, ALLIANT ENERGY CORPORATION has caused this
Guarantee to be signed in its corporate name by the signature of two of its
officers thereunto duly authorized and has caused its corporate seal to be
affixed hereto or imprinted or otherwise reproduced hereon.
ALLIANT ENERGY CORPORATION,
as Guarantor
ATTEST:
By:_________________________ By:________________________________
Name: Name:
Title: Title:
<PAGE>
TRUSTEE CERTIFICATE OF AUTHENTICATION
-------------------------------------
This is one of the Senior Notes described in the within-named
Indenture.
FIRSTAR BANK, N.A.,
as Trustee
By:________________________________
Name:
Title:
Execution Copy
================================================================================
ALLIANT ENERGY RESOURCES, INC.
(a Wisconsin corporation)
7 3/8% SENIOR NOTES DUE 2009
UNCONDITIONALLY GUARANTEED AS TO PAYMENT
OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
ALLIANT ENERGY CORPORATION
(A Wisconsin Corporation)
PURCHASE AGREEMENT
Dated: November 4, 1999
================================================================================
<PAGE>
Table of Contents
Page
----
SECTION 1. Representations and Warranties by the Company and the Parent.......3
(a) Representations and Warranties......................................3
(i) Offering Memorandum..................................................3
(ii) Incorporated Documents..............................................3
(iii) Independent Accountants............................................4
(iv) Financial Statements................................................4
(v) No Material Adverse Change in Business...............................4
(vi) Good Standing of the Company and the Parent.........................5
(vii) Good Standing of Designated Subsidiaries...........................5
(viii) Capitalization....................................................5
(ix) Authorization of Agreement..........................................6
(x) Authorization of the Indenture.......................................6
(xi) Authorization of the Supplemental Indenture.........................6
(xii) Authorization of the Registration Rights Agreement................7
(xiii) Authorization of the Securities...................................7
(xiv) Description of the Securities and the Indenture....................7
(xv) Absence of Defaults and Conflicts...................................7
(xvi) Absence of Labor Dispute...........................................8
(xvii) Absence of Proceedings............................................8
(xviii) Absence of Further Requirements..................................9
(xix) Possession of Licenses and Permits.................................9
(xx) Title to Property..................................................10
(xxi) Environmental Laws................................................10
(xxii) Investment Company Act...........................................11
(xxiii) Similar Offerings...............................................11
(xxiv) Rule 144A Eligibility............................................11
(xxv) No General Solicitation...........................................11
(xxvi) No Registration Required.........................................11
(xxvii) Reporting Company...............................................11
(b) Officer's Certificates..............................................12
SECTION 2. Sale and Delivery to Initial Purchasers; Closing..................12
(a) Securities.........................................................12
(b) Payment............................................................12
(c) Denominations; Registration........................................12
i
<PAGE>
Page
----
SECTION 3. Covenants of the Company and the Parent...........................13
(a) Offering Memorandum................................................13
(b) Notice and Effect of Material Events...............................13
(c) Amendment to Offering Memorandum and Supplements...................13
(d) Qualification of Securities for Offer and Sale]....................14
(e) Rating of Securities...............................................14
(f) DTC................................................................14
(g) Use of Proceeds....................................................14
(h) Restriction on Sale of Securities..................................14
(i) Filing of Registration Statement...................................14
SECTION 4. Payment of Expenses...............................................15
(a) Expenses...........................................................15
(b) Termination of Agreement...........................................16
SECTION 5. Conditions of Initial Purchasers'Obligations......................16
(a) Opinion of Counsel for Company and the Parent......................16
(b) Opinion of Counsel for Initial Purchasers..........................16
(c) Officers'Certificate...............................................17
(d) Accountants'Comfort Letter.........................................17
(e) Bring-down Comfort Letter..........................................17
(f) Maintenance of Rating..............................................17
(g) Additional Documents...............................................18
(h) Termination of Agreement...........................................18
SECTION 6. Subsequent Offers and Resales of the Securities...................18
(a) Offer and Sale Procedures..........................................18
(i) Offers and Sales only to Qualified Institutional Buyers or
Institutional Accredited Investors..................18
(ii) No General Solicitation............................................18
(iii) Purchases by Non-Bank Fiduciaries.................................19
(iv) Subsequent Purchaser Notification..................................19
(v) Minimum Principal Amount............................................19
(vi) Restrictions on Transfer...........................................19
(vii) Delivery of Offering Memorandum...................................19
(b) Covenants of the Company and the Parent............................20
(i) Integration.........................................................20
(ii) Rule 144A Information..............................................20
(iii) Restriction on Repurchases........................................20
(c) Qualified Institutional Buyer......................................20
ii
<PAGE>
Page
----
SECTION 7. Indemnification...................................................20
(a) Indemnification of Initial Purchasers..............................20
(b) Indemnification of Company and Parent..............................21
(c) Actions against Parties; Notification..............................21
(d) Settlement without Consent if Failure to Reimburse.................22
SECTION 8. Contribution......................................................23
SECTION 9. Representations, Warranties and Agreements to Survive Delivery....24
SECTION 10. Termination of Agreement.........................................24
(a) Termination; General...............................................24
(b) Liabilities........................................................25
SECTION 11. Default by One or More of the Initial Purchasers.................25
SECTION 12. Notices..........................................................26
SECTION 13. Parties..........................................................26
SECTION 14. Governing Law And Time...........................................26
SECTION 15. Effect of Headings...............................................26
SCHEDULES
Schedule A - List of Initial Purchasers............................Sch A-1
Schedule B - Pricing Information...................................Sch B-1
Schedule C - List of Subsidiaries..................................Sch C-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel.......................A-1
Exhibit B - Form of Opinion of Parent's Counsel........................B-1
iii
<PAGE>
ALLIANT ENERGY RESOURCES, INC.
(a Wisconsin corporation)
$250,000,000
7 3/8% SENIOR NOTES DUE 2009
UNCONDITIONALLY GUARANTEED AS TO PAYMENT
OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
ALLIANT ENERGY CORPORATION
(A WISCONSIN CORPORATION)
PURCHASE AGREEMENT
November 4, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representative of the several Initial Purchasers
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Alliant Energy Resources, Inc., a Wisconsin corporation (the "Company"),
and Alliant Energy Corporation, a Wisconsin corporation (the "Parent"), confirm
their agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and each of the other Initial Purchasers named in
Schedule A hereto (collectively, the "Initial Purchasers," which term shall also
include any initial purchaser substituted as hereinafter provided in Section 11
hereof), for whom Merrill Lynch is acting as Representative (in such capacity,
the "Representative"), with respect to the issue and sale by the Company and the
purchase by the Initial Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $250,000,000
aggregate principal amount of the Company's 7 3/8% Senior Notes due 2009 (the
"Securities"). The Securities will be unconditionally guaranteed as to payment
of principal, premium, if any, and interest by the Parent and will be issued
pursuant to an indenture dated as of November 4, 1999 (the "Indenture") between
the Company, the Parent and Firstar Bank, N.A., as trustee (the "Trustee"). The
term "Indenture," as used herein, includes the First Supplemental Indenture
dated as of November 4, 1999 (the "Supplemental Indenture") establishing the
form and terms of the Securities pursuant to Section 2.02 of the Indenture.
Securities issued in book-entry form will be
<PAGE>
issued to Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant
to a letter agreement, to be dated as of the Closing Time (as defined in Section
2(b)) (the "DTC Agreement"), among the Company, the Trustee and DTC.
The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers ("Subsequent
Purchasers") at any time after this Agreement has been executed and delivered.
The Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "1933 Act"),
in reliance upon exemptions therefrom. Pursuant to the terms of the Securities
and the Indenture, investors that acquire Securities may only resell or
otherwise transfer such Securities if such Securities are hereafter registered
under the 1933 Act or if an exemption from the registration requirements of the
1933 Act is available (including the exemption afforded by Rule 144A ("Rule
144A") of the rules and regulations promulgated under the 1933 Act by the
Securities and Exchange Commission (the "Commission") and the exemption under
Regulation D ("Regulation D") for sales to a limited number of institutional
"accredited investors" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act (each, an "Institutional Accredited Investor")).
Holders (including subsequent transferees) of the Securities will have the
registration rights set forth in the Registration Rights Agreement (the
"Registration Rights Agreement"), to be entered at the Closing Time, among the
Company, the Parent and the Initial Purchasers, for so long as such Securities
constitute "Registrable Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company and the
Parent will agree to file with the Commission under the circumstances set forth
therein, (i) a registration statement under the 1933 Act (the "Exchange Offer
Registration Statement") registering an issue of the Company's 7 3/8% Senior
Notes due 2009 identical in all material respects to the Securities (the
"Exchange Securities") to be offered in exchange for the Securities (the
"Exchange Offer") and (ii), under certain circumstances, a registration
statement pursuant to Rule 415 under the 1933 Act (the "Shelf Registration
Statement") to register the Securities.
The Company has prepared and delivered to each Initial Purchaser copies of
a preliminary offering memorandum dated November 2, 1999 (the "Preliminary
Offering Memorandum") and has prepared and will deliver to each Initial
Purchaser, on the date hereof or the next succeeding day, copies of a final
offering memorandum dated November 4, 1999 (the "Final Offering Memorandum"),
each for use by such Initial Purchaser in connection with its solicitation of
purchases of, or offering of, the Securities. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Preliminary Offering Memorandum or the Final
Offering Memorandum, or any amendment or supplement to either such document),
including exhibits thereto and any documents incorporated therein by reference,
which has been prepared and delivered by the Company to the Initial Purchasers
in connection with their solicitation of purchases of, or offering of, the
Securities.
2
<PAGE>
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are incorporated by reference in the Offering Memorandum; and all references in
this Agreement to amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934 (the "1934 Act") which is incorporated by reference in the
Offering Memorandum.
SECTION 1. Representations and Warranties by the Company and the Parent.
(a) Representations and Warranties. Except as otherwise noted herein, the
Company and the Parent severally and jointly represent and warrant to each
Initial Purchaser as of the date hereof and as of the Closing Time referred to
in Section 2(b) hereof, and severally and jointly agree with each Initial
Purchaser, as follows:
(i) Offering Memorandum. The Offering Memorandum does not, and at the
Closing Time will not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that this representation, warranty and agreement shall
not apply to statements in or omissions from the Offering Memorandum made
in reliance upon and in conformity with information furnished to the
Company in writing by any Initial Purchaser through Merrill Lynch expressly
for use in the Offering Memorandum.
(ii) Incorporated Documents. (A) The Offering Memorandum as delivered
from time to time shall incorporate by reference the most recent annual
report of the Parent on Form 10-K for the year ended December 31, 1998, as
amended by Form 10-K/A filed with the Commission on November 1, 1999, the
quarterly reports of the Parent on Form 10-Q for the quarters ended March
31, 1999 and June 30, 1999, each as amended by Form 10-Q/As filed with the
Commission on November 1, 1999, and the current reports of the Parent on
Form 8-K, both filed with the Commission on January 20, 1999, and any such
reports filed with the Commission after the date of the Offering Memorandum
and before the end of the offering of the Securities. (B) With respect to
this subsection clause (B) of this clause (ii) only, the Parent represents
and warrants that the documents incorporated or deemed to be incorporated
by reference in the Offering Memorandum at the time they were or hereafter
are filed with the Commission complied or will comply, as the case may be,
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder, and, when read together
with the other information in the Offering Memorandum, at the time the
Offering Memorandum was issued and at the Closing Time, did not and will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
3
<PAGE>
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Offering
Memorandum are independent public accountants with respect to the Company,
the Parent and their respective subsidiaries within the meaning of
Regulation S-X under the 1933 Act.
(iv) Financial Statements. The financial statements, together with the
related schedules and notes, included in the Offering Memorandum present
fairly in all materials respects the financial position of the Company and
its consolidated subsidiaries and the Parent and its consolidated
subsidiaries at the dates indicated and the statement of operations,
shareowners' equity and cash flows of the Company and its consolidated
subsidiaries and the Parent and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Offering Memorandum present fairly in
all materials respects in accordance with GAAP the information required to
be stated therein. The selected financial data and the summary financial
information included in the Offering Memorandum present fairly in all
materials respects the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements included
in the Offering Memorandum.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Offering Memorandum, except as
otherwise stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings or business
affairs of the Company and the Parent and their respective subsidiaries, in
each case, considered as one enterprise, whether or not arising in the
ordinary course of business nor has there been any developments involving a
prospective material adverse change of the Company and the Parent and their
respective subsidiaries, in each case, considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by the
Company and the Parent or any of their respective subsidiaries, other than
those in the ordinary course of business, which are material with respect
to the Company and the Parent and their respective subsidiaries, and (C)
except for regular dividends on the common stock, par value $.01 per share,
of the Parent (the "Common Stock") in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Parent on any class of its capital stock.
(vi) Good Standing of the Company and the Parent. Each of the Company
and the Parent has been duly organized and is validly existing as a
corporation under the laws of the State of Wisconsin and has corporate
power and authority to own, lease and operate their respective properties
and to conduct their respective businesses as described in the Offering
Memorandum and to enter into and perform their respective obligations under
this Agreement; and each of the Company and the Parent is duly qualified as
a
4
<PAGE>
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(vii) Good Standing of Designated Subsidiaries. Each material
subsidiary of the Company is listed on Schedule C hereto (each subsidiary
on the list shall be referred to herein as a "Designated Subsidiary" and,
collectively, as the "Designated Subsidiaries"). Each Designated Subsidiary
has been duly organized and is validly existing as a corporation under the
laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect; except as otherwise disclosed in the Offering
Memorandum, all of the issued and outstanding capital stock of each
Designated Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable (except, in the case of Designated Subsidiaries
that are Wisconsin corporations, for certain statutory liabilities that may
be imposed by Section 180.0622(b) of the Wisconsin Business Corporation Law
(the "WBCL") for unpaid employee wages) and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of the Designated Subsidiaries was
issued in violation of any preemptive or similar rights of any
securityholder of such Designated Subsidiary.
(viii) Capitalization. The authorized, issued and outstanding capital
stock of the Parent is as set forth in the Offering Memorandum in the
columns entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements, employee benefit plans referred to in the
Offering Memorandum or pursuant to the exercise of convertible securities
or options referred to in the Offering Memorandum). All of the issued and
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable (except
for certain statutory liabilities that may be imposed by Section
180.0622(b) of the WBCL for unpaid employee wages) and are owned by the
Parent; and none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any
securityholder of the Company. All of the issued and outstanding shares if
capital stock of the Parent have been duly authorized and validly issued
and are fully paid and non-assessable (except for certain statutory
liabilities that may be imposed by Section 180.0622(b) of the WBCL for
unpaid employee wages); and all of the issued and outstanding capital stock
of its significant subsidiaries (as such term is defined in Rule 1-02 of
Regulation S-X), including the Company, have been duly authorized and
validly issued and are fully paid and non-
5
<PAGE>
assessable (except, in the case of such subsidiaries that are Wisconsin
corporations, for certain statutory liabilities that may be imposed by
Section 180.0622(b) of the WBCL for unpaid employee wages) and (except for
directors' qualifying shares and except as otherwise set forth in the
Offering Memorandum) are owned directly or indirectly by the Parent, free
and clear of all liens, encumbrances, equities or claims.
(ix) Authorization of Agreement. The Company and the Parent have all
requisite corporate power and authority to execute and deliver this
Agreement and to perform their obligations hereunder. This Agreement has
been duly authorized, executed and delivered by the Company and the Parent.
(x) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and the Parent and, when executed and delivered
by the Company, the Parent and the Trustee, will constitute a valid and
binding agreement of the Company and the Parent, enforceable against the
Company and the Parent in accordance with its terms, except as (A) the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and (B) as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xi) Authorization of the Supplemental Indenture The Supplemental
Indenture has been duly authorized by the Company and the Parent and, when
executed and delivered by the Company, the Parent and the Trustee, will
constitute a valid and binding agreement of the Company and the Parent,
enforceable against the Company and the Parent in accordance with its
terms, except (A) as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and (B) as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xii) Authorization of the Registration Rights Agreement. The Company
and the Parent have all requisite corporate power and authority to execute
and deliver the Registration Rights Agreement. The Registration Rights
Agreement has been duly authorized by the Company and the Parent and, when
executed and delivered by the Company, the Parent and the Initial
Purchasers, will constitute a valid and binding agreement of the Company
and the Parent, enforceable against the Company and the Parent in
accordance with its terms, except (A) as the enforcement thereof may be
limited by bankruptcy, insolvency, (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and (B) as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
6
<PAGE>
(xiii) Authorization of the Securities. The Securities have been duly
authorized and the Guarantees have been duly authorized and, at the Closing
Time, will have been duly executed by the Company and the Securities will
have been guaranteed by the Parent and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered against
payment of the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Company and the Parent,
enforceable against the Company and the Parent in accordance with their
terms, except (A) as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and (B) as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and will be
in the form contemplated by, and entitled to the benefits of, the
Indenture.
(xiv) Description of the Securities and the Indenture. The Securities
and the Indenture will conform in all material respects to the respective
statements relating thereto contained in the Offering Memorandum and will
be in substantially the respective forms last delivered to the Initial
Purchasers prior to the date of this Agreement.
(xv) Absence of Defaults and Conflicts. None of the Company, the
Parent or any of their respective subsidiaries is in violation of their
respective charters or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company, the
Parent or any of their respective subsidiaries is a party or by which any
of them may be bound, or to which any of the property or assets of the
Company, the Parent or any of their respective subsidiaries is subject
(collectively, "Agreements and Instruments") except for such defaults that
would not result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement, the Indenture, the Registration Rights
Agreement, the Securities and the Guarantees and any other agreement or
instrument entered into or issued or to be entered into or issued by the
Company and the Parent in connection with the transactions contemplated
hereby or thereby or in the Offering Memorandum and the consummation of the
transactions contemplated herein and in the Offering Memorandum (including
the issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Offering Memorandum under
the caption "Use of Proceeds") and compliance by the Company and the Parent
with their respective obligations hereunder have been duly authorized by
all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or a Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the Parent or any
of their respective subsidiaries pursuant to, the Agreements and
Instruments except for such conflicts, breaches or defaults or liens,
charges or encumbrances that, singly or in
7
<PAGE>
the aggregate, would not result in a Material Adverse Effect, nor will such
action result in any violation of the provisions of (x) the charter or
by-laws of the Company, the Parent or any of their respective subsidiaries
(except for such conflicts, breaches, defaults, events or liens, charges or
encumbrances that would not result in a Material Adverse Effect) or (y) any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company, the Parent or any of their
respective subsidiaries or any of their assets, properties or operations,
except for any such violations with respect to this clause (y) as would
not, individually or in the aggregate, result in a Material Adverse Effect.
As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company, the Parent or any of their respective
subsidiaries.
(xvi) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge of the
Company or the Parent, is imminent, and neither the Company nor the Parent
is aware of any existing or imminent labor disturbance by the employees of
the Company, its subsidiaries or their respective principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xvii) Absence of Proceedings. Except as disclosed in the Offering
Memorandum, there is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company or the Parent,
threatened, against or affecting the Company, the Parent or any of their
respective subsidiaries which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect (A) the properties or assets of the
Company, the Parent or any of their respective subsidiaries or (B) the
consummation of the transactions contemplated by this Agreement or the
performance by the Company and the Parent of their respective obligations
hereunder. The aggregate of all pending legal or governmental proceedings
to which the Company, the Parent or any of their respective subsidiaries is
a party or of which any of their respective property or assets is the
subject which are not described in the Offering Memorandum, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xviii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company and the Parent
of their respective obligations hereunder, in connection with (A) the
offering, issuance or sale of the Securities hereunder or the consummation
of the
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transactions contemplated by this Agreement or (B) for the due execution,
delivery or performance of the Indenture by the Company and the Parent,
except such as have been already obtained and except such as may be
required by the securities laws of the various states in which the
Securities will be offered or sold and the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act") (solely with respect to filings
required to be made with the Commission subsequent to the Closing Time),
with the offer and sale of the Securities or by the 1933 Act or the Trust
Indenture Act of 1939, as amended (the "1939 Act"), in connection with the
exchange offer as contemplated by the Registration Rights Agreement.
(xix) Possession of Licenses and Permits. The Company, the Parent and
their respective subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them
except where the failure to possess any such Governmental Licenses would
not have a Material Adverse Effect; the Company, the Parent and their
respective subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and none of the Company, the Parent nor any of
their respective subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xx) Title to Property. The Company, the Parent and their respective
subsidiaries have good and marketable title to all real property owned by
the Company, the Parent and their respective subsidiaries and good title to
all other properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (A) are described in the Offering
Memorandum or (B) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed
to be made of such property by the Company, the Parent or any of their
respective subsidiaries; and all of the leases and subleases material to
the business of the Company, the Parent and their respective subsidiaries,
considered as one enterprise, and under which the Company, the Parent or
any of their respective subsidiaries holds properties described in the
Offering Memorandum, are in full force and effect, and none of the Company,
the Parent nor any of their respective subsidiaries has any notice of any
material claim of any sort that has been asserted by anyone adverse to the
rights of the Company, the Parent or any of their respective subsidiaries
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of such the Company, the Parent or any subsidiary
thereof to the
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continued possession of the leased or subleased premises under any such
lease or sublease, except where such would not have a Material Adverse
Effect.
(xxi) Environmental Laws. Except as described in the Offering
Memorandum and the documents incorporated by reference therein and except
such matters as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) none of the Company, the Parent or any of their
respective subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company, the Parent
and their respective subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or, to the
knowledge of the Company, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company, the Parent or any of their
respective subsidiaries and (D) there are no events or circumstances that
might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company, the Parent
or any of their respective subsidiaries relating to Hazardous Materials or
Environmental Laws.
(xxii) Investment Company Act. Neither the Company nor the Parent is,
and upon the issuance and sale of the Securities as herein contemplated and
the application of the net proceeds therefrom as described in the Offering
Memorandum will be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxiii) Similar Offerings. None of the Company, the Parent or any of
their respective affiliates, as such term is defined in Rule 501(b) under
the 1933 Act (each, an "Affiliate"), has, directly or indirectly, solicited
any offer to buy, sold or offered to sell or otherwise negotiated in
respect of, or will solicit any offer to buy, sell or offer to sell or
otherwise negotiate in respect of, in the United States or to any United
States citizen or resident, any security which is or would be integrated
with the sale of the Securities in a manner that would require the
Securities to be registered under the 1933 Act.
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(xxiv) Rule 144A Eligibility. The Securities are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same
class as securities listed on a national securities exchange registered
under Section 6 of the 1934 Act, or quoted in a U.S. automated interdealer
quotation system.
(xxv) No General Solicitation. None of the Company, the Parent, their
Affiliates or any person acting on its or any of their behalf (other than
the Initial Purchasers, as to whom the Company and the Parent make no
representation) has engaged or will engage, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(xxvi) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in Section 2
and the procedures set forth in Section 6 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register the
Securities under the 1933 Act or to qualify the Indenture under the 1939
Act.
(xxvii) Reporting Company. With respect to this clause (xxvii) only,
the Parent represents and warrants that it is subject to the reporting
requirements of Section 13 or Section 15(d) of the 1934 Act.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company and of the Parent or any of their respective subsidiaries delivered to
the Representative or to counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company and the Parent to each Initial
Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Initial Purchaser, severally and not jointly, and each
Initial Purchaser, severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the aggregate principal amount of
Securities set forth in Schedule A opposite the name of such Initial Purchaser,
plus any additional principal amount of Securities which such Initial Purchaser
may become obligated to purchase pursuant to the provisions of Section 11
hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of the Company at
222 West Washington Avenue, Madison, Wisconsin, 53703, or at such other place as
shall be agreed upon by the Representative and the Company, at 10:00 A.M.
(eastern time) on the third business day after the date hereof (unless postponed
in accordance with the provisions of Section 11), or such other time not later
than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery being
herein called the "Closing Time").
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Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Initial Purchasers of
certificates for the Securities to be purchased by them. It is understood that
each Initial Purchaser has authorized the Representative, for its account, to
accept delivery of, receipt for and make payment of the purchase price for, the
Securities which it has agreed to purchase. Merrill Lynch, individually and not
as representative of the Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Initial Purchaser whose funds have not been received by the Closing Time, but
such payment shall not relieve such Initial Purchaser from its obligations
hereunder.
(c) Denominations; Registration. Certificates for the Securities shall be
in such denominations ($100,000 or integral multiples of $1,000 in excess
thereof) and registered in such names as the Representative may request in
writing at least one full business day before the Closing Time. The certificates
representing the Securities shall be made available for examination and
packaging by the Initial Purchasers in Madison, Wisconsin not later than 10:00
A.M. on the last business day prior to the Closing Time.
SECTION 3. Covenants of the Company and the Parent. The Company and the
Parent, jointly and severally, covenant with each Initial Purchaser as follows:
(a) Offering Memorandum. The Company and the Parent, as promptly as
possible, will furnish to each Initial Purchaser, without charge, such number of
copies of the Preliminary Offering Memorandum, the Final Offering Memorandum and
any amendments and supplements thereto and documents incorporated by reference
therein as such Initial Purchasers may reasonably request.
(b) Notice and Effect of Material Events. The Company and the Parent will
immediately notify each Initial Purchaser, and confirm such notice in writing,
of (x) any filing made by the Company or the Parent of information relating to
the offering of the Securities with any securities exchange or any other
regulatory body in the United States or any other jurisdiction, and (y) prior to
the completion of the placement of the Securities by the Initial Purchasers as
evidenced by a notice in writing from the Initial Purchasers to the Company, any
material changes in or affecting the condition, financial or otherwise, or the
earnings or business affairs of the Company and the Parent and their respective
subsidiaries, taken as a whole, nor has there been any developments involving a
prospective material adverse change of the Company and the Parent and their
respective subsidiaries, taken as a whole, which (i) make any statement in the
Offering Memorandum materially false or misleading or (ii) are not disclosed in
the Offering Memorandum. In such event or if during such time any event shall
occur as a result of which it is necessary, in the reasonable opinion of any of
the Company, the Parent, their counsel, the Initial Purchasers or counsel for
the Initial Purchasers, to amend or supplement the Final Offering Memorandum in
order that the Final Offering Memorandum not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
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statements therein not misleading in the light of the circumstances then
existing, the Company will forthwith amend or supplement the Final Offering
Memorandum by preparing and furnishing to each Initial Purchaser an amendment or
amendments of, or a supplement or supplements to, the Final Offering Memorandum
(in form and substance satisfactory in the reasonable opinion of counsel for the
Initial Purchasers) so that, as so amended or supplemented, the Final Offering
Memorandum will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a Subsequent
Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. The Company and the
Parent will advise each Initial Purchaser promptly of any proposal to amend or
supplement the Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchasers, which consent shall
not be unreasonably withheld. Neither the consent of the Initial Purchasers, nor
the Initial Purchaser's delivery of any such amendment or supplement, shall
constitute a waiver of any of the conditions set forth in Section 5 hereof.
(d) Qualification of Securities for Offer and Sale. The Company will use
its best efforts, in cooperation with the Initial Purchasers, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Representative may designate and will
maintain such qualifications in effect as long as required for the sale of the
Securities; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(e) Rating of Securities. The Company shall take all reasonable action
necessary to enable Standard & Poor's Ratings Services, a division of McGraw
Hill, Inc. ("S&P"), and Moody's Investors Service Inc. ("Moody's") to provide
their respective credit ratings of the Securities.
(f) DTC. The Company will cooperate with the Representative and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of DTC.
(g) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Offering
Memorandum under "Use of Proceeds."
(h) Restriction on Sale of Securities. During a period of five (5) business
days from the date of the Closing Time, none of the Company, the Parent or their
respective subsidiaries will, without the prior written consent of Merrill
Lynch, directly or indirectly, issue, sell, offer or agree to sell, grant any
option for the sale of, or otherwise dispose of, any other debt securities of
the Company or the Parent or securities of the Company or the Parent that are
convertible into, or exchangeable for, the Securities or such other debt
securities.
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(i) Filing of Registration Statement. The Company and the Parent (A) shall
file the Exchange Offer Registration Statement on an appropriate form under the
1933 Act with the Commission within 135 days of the Closing Time, (B) shall use
their reasonable best efforts to cause the Exchange Offer Registration Statement
to be declared effective under the 1933 Act within 180 days of the Closing Time,
(C) shall use their reasonable best efforts to keep the Exchange Offer
Registration Statement effective until the closing of the Exchange Offer and (D)
shall use their reasonable best efforts to cause the Exchange Offer to be
consummated not later than 45 days following the effective date of the Exchange
Offer Registration Statement. In the event that (a) the Company and the Parent
are not permitted to effect the Exchange Offer as contemplated because of any
changes in law, Commission rules or regulations or applicable interpretations
thereof by the staff of the Commission, (b) for any other reason, the Exchange
Offer Registration Statement is not declared effective within 180 days following
the Closing Time or the Exchange Offer is not consummated within 45 days after
the effectiveness of the Exchange Offer Registration Statement, (c) upon the
request of any of the Initial Purchasers within 90 days following the
consummation of the Exchange Offer (d) if, as a result of any changes in law,
Commission rules or regulations or applicable interpretations thereof by the
staff of the commission or otherwise a holder of Securities (other than an
Initial Purchaser holding Securities acquired directly from the Company) is not
permitted to participate in the Exchange Offer or does not receive fully
tradeable Exchange Securities pursuant to the Exchange Offer or (e) if, unless
the Company determines otherwise, at the time of the issuance of the Exchange
Securities or the Private Exchange Securities (as defined herein), the interest
rate of such securities will be 300 basis points above the yield to maturity of
a United States Treasury obligation having a remaining term equal to the average
life of such security, the Company and the Parent shall thereafter use their
reasonable best efforts to cause to be declared effective as promptly as
practicable but not later than 210 days after the issuance of the Securities a
Shelf Registration Statement as provided in the Registration Rights Agreement.
For purposes of this Agreement, "Private Exchange Securities" shall mean those
securities issued by the Company and the Parent upon the request of any Initial
Purchaser for the Securities held by such Initial Purchaser which were acquired
from the Company and have the status of an unsold allotment in the initial
distribution. The Private Exchange Securities shall be issued and delivered to
the Initial Purchaser simultaneously with the delivery of the Exchange
Securities in the Exchange Offer.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation,
printing, delivery to the Initial Purchasers and any filing of the Offering
Memorandum (including financial statements and any schedules or exhibits and any
document incorporated therein by reference) and of each amendment or supplement
thereto, (ii) the preparation, printing and delivery to the Initial Purchasers
of this Agreement, any Agreement among Initial Purchasers, the Indenture and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the
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Securities to the Initial Purchasers, including any transfer taxes, any stamp or
other duties payable upon the sale, issuance and delivery of the Securities to
the Initial Purchasers and any charges of DTC in connection therewith, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(d) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Initial Purchasers in connection
therewith and in connection with the preparation of the Blue Sky Survey, any
supplement thereto; provided, that, counsel fees in connection therewith do not
exceed $5,000, (vi) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities and (vii) any fees payable in connection with the rating of the
Securities
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section
10(a)(i) hereof, the Company shall reimburse the Initial Purchasers for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Initial Purchasers, provided, that, such fees and expenses do
not exceed $200,000.
SECTION 5. Conditions of Initial Purchasers' Obligations. The obligations
of the several Initial Purchasers hereunder are subject to the accuracy in all
material respects of the representations and warranties of the Company and the
Parent contained in Section 1 hereof or in certificates of any officer of the
Company, the Parent or any of their respective subsidiaries delivered pursuant
to the provisions hereof, to the performance in all material respects by the
Company and the Parent of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Opinion of Counsel for Company and the Parent. At the Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of Foley & Lardner, counsel for the Company, in form and substance
satisfactory to counsel for the Initial Purchasers, together with signed or
reproduced copies of such letter for each of the other Initial Purchasers to the
effect set forth in Exhibit A hereto. In addition, the Representative shall have
received the favorable opinion, dated as of the Closing Time of Foley & Lardner,
counsel for the Parent, in form and substance satisfactory to counsel for the
Initial Purchasers to effect set forth in Exhibit B hereto. Such counsel may
also state that they have relied on certificates of public officials and,
insofar as such opinions involve factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company, the
Parent and their respective subsidiaries.
(b) Opinion of Counsel for Initial Purchasers. At the Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of Chadbourne & Parke LLP, counsel for the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers with respect to certain matters. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions
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other than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representative. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company,
the Parent and their respective subsidiaries and certificates of public
officials.
(c) Officers' Certificate. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Offering Memorandum, any material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the Company
and the Parent and their respective subsidiaries, in each case, considered as
one enterprise, whether or not arising in the ordinary course of business, nor
has there been any developments involving a prospective material adverse change
of the Company and the Parent and their respective subsidiaries, in each case,
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representative shall have received a certificate of the
President, Chief Executive Officer or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of the
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 hereof are true and
correct in all materials respects with the same force and effect as though
expressly made at and as of the Closing Time and (iii) the Company has complied
in all material respects with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time. The
Representative shall also have received a certificate of the President, Chief
Executive Officer or Vice President of the Parent and of the chief financial or
chief accounting officer of the Parent, dated as of the Closing Time, to the
effect that (i) the representations and warranties in Section 1 hereof are true
and correct in all material respects with the same force and effect as through
made at and as of the Closing Time and (ii) the Parent has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Time.
(d) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from Arthur Andersen LLP a
letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers containing statements and information of
the type ordinarily included in accountants' "comfort letters" to Initial
Purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(e) Bring-down Comfort Letter. At the Closing Time, the Representative
shall have received from Arthur Andersen LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to the
Closing Time.
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(f) Maintenance of Rating. At the Closing Time, the Securities shall be
rated at least A3 by Moody's and A by S&P, and the Company shall have delivered
to the Representative a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representative, confirming that
the Securities have such ratings; and since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to the Securities
or any of the Company's other debt securities by any "nationally recognized
statistical rating agency," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such securities rating
agency shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of the Securities or any of the
Company's other debt securities .
(g) Additional Documents. At the Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents as they may require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Representative and
counsel for the Initial Purchasers.
(h) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 7, 8 and 9 shall survive any such termination and remain
in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Company hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers or
Institutional Accredited Investors. Offers and sales of the Securities
shall only be made (A) to persons whom the offeror or seller reasonably
believes to be qualified institutional buyers, as defined in Rule 144A
under the 1933 Act ("Qualified Institutional Buyers") or (B) to a limited
number of persons who are other institutional accredited investors, as such
term is defined in Rule 501(a)(1), (2), (3) or (7) under the 1933 Act that
the offeror or seller reasonably believes to be and, with respect to sales
and deliveries, that are such institutional accredited investors
("Institutional Accredited Investors").
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be
used in the United States in connection with the offering or sale of the
Securities.
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(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Security acting as a fiduciary for one or more
third parties, each third party shall, in the judgment of the applicable
Initial Purchaser, be an Institutional Accredited Investor or a Qualified
Institutional Buyer.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. Affiliates to
take reasonable steps to inform, persons acquiring Securities from such
Initial Purchaser or affiliate, as the case may be, in the United States
that the Securities (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933
Act in reliance on Rule 144A or in accordance with another exemption from
registration under the 1933 Act, as the case may be, and (C) may not be
offered, sold or otherwise transferred except (1) to the Company or (2)
inside the United States in accordance with (x) Rule 144A to a person whom
the seller reasonably believes is a Qualified Institutional Buyer that is
purchasing such Securities for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the offer, sale
or transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) Minimum Principal Amount. No sale of the Securities to any one
Subsequent Purchaser will be for less than U.S. $100,000 principal amount
and no Security will be issued in a smaller principal amount. If the
Subsequent Purchaser is a non-bank fiduciary acting on behalf of others,
each person for whom it is acting must purchase at least U.S. $100,000
principal amount of the Securities.
(vi) Restrictions on Transfer. The transfer restrictions and the other
provisions set forth in the Offering Memorandum under the heading "Transfer
Restrictions," including the legend required thereby, shall apply to the
Securities except as otherwise agreed by the Company and the Initial
Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each purchaser of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery.
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(b) Covenants of the Company and the Parent. The Company and the Parent,
jointly and severally, covenant with each Initial Purchaser as follows:
(i) Integration. The Company and the Parent agree that they will not
and will cause their respective Affiliates not to, directly or indirectly,
solicit any offer to buy, sell or make any offer or sale of, or otherwise
negotiate in respect of, securities of the Company of any class if, as a
result of the doctrine of "integration" referred to in Rule 502 under the
1933 Act, such offer or sale would render invalid (for the purpose of (i)
the sale of the Securities by the Company to the Initial Purchasers, (ii)
the resale of the Securities by the Initial Purchasers to Subsequent
Purchasers or (iii) the resale of the Securities by such Subsequent
Purchasers to others) the exemption from the registration requirements of
the 1933 Act provided by Section 4(2) thereof or by Rule 144A thereunder or
otherwise.
(ii) Rule 144A Information. The Company and the Parent agree that, in
order to render the Securities eligible for resale pursuant to Rule 144A
under the 1933 Act, while any of the Securities remain outstanding, they
will make available, upon request, to any holder of Securities or
prospective purchasers of Securities the information specified in Rule
144A(d)(4), unless such information is furnished to the Commission pursuant
to Section 13 or 15(d) of the 1934 Act.
(iii) Restriction on Repurchases. Until the expiration of two years
after the original issuance of the Securities, the Company and the Parent
will not, and will cause their respective Affiliates not to, resell any
Securities which are "restricted securities" (as such term is defined under
Rule 144(a)(3) under the 1933 Act), whether as beneficial owner or
otherwise (except as agent acting as a securities broker on behalf of and
for the account of customers in the ordinary course of business in
unsolicited broker's transactions).
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with, the Company and the Parent
that it is a Qualified Institutional Buyer within the meaning of Rule 144A under
the 1933 Act and an "accredited investor" within the meaning of Rule 501(a)
under the 1933 Act (an "Accredited Investor").
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. The Company and the Parent,
jointly and severally, agree to indemnify and hold harmless each Initial
Purchaser and each person, if any, who controls any Initial Purchaser within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Memorandum or the Final Offering
19
<PAGE>
Memorandum (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Company and the Parent; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or the
Parent, as the case may be, by any Initial Purchaser through Merrill Lynch
expressly for use in the Offering Memorandum (or any amendment thereto).
(b) Indemnification of Company and Parent. Each Initial Purchaser severally
agrees to indemnify and hold harmless the Company and the Parent and each
person, if any, who controls the Company or the Parent within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Offering Memorandum in reliance upon and in conformity with written information
furnished to the Company or the Parent, as the case may be, by such Initial
Purchaser through Merrill Lynch expressly for use in the Offering Memorandum.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section
20
<PAGE>
7(b) above, counsel to the indemnified parties shall be selected by the Parent.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. In
addition, the indemnifying party shall be entitled to, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense of any claim or action brought against an indemnified party with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representative shall have the right to employ one counsel to represent
jointly it and those other Initial Purchasers and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Initial Purchasers
against the Company and the Parent under this Section 7 if, in the reasonable
judgment of the Representative, either (i) there is an actual or potential
conflict between the position of the Company and the Parent on the one hand and
the Initial Purchasers on the other hand or (ii) there may be defenses available
to it or them that are different from or additional to those available to the
Company and Parent (in any of which events the Company shall not have the right
to direct the defense of such action on behalf of the Representative with
respect to such different defenses), in any of which events such reasonable fees
and expenses shall be borne by the Company and Parent. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section or Section 8
hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying
21
<PAGE>
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for in Section 7
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Parent on the one hand and the Initial Purchasers on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Parent on the one
hand and of the Initial Purchasers on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Parent on the one
hand and the Initial Purchasers on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the total underwriting discount received by the Initial
Purchasers, bear to the aggregate initial offering price of the Securities.
The relative fault of the Company and the Parent on the one hand and the
Initial Purchasers on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Parent or by the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Parent and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Initial Purchaser shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities
22
<PAGE>
purchased and sold by it hereunder exceeds the amount of any damages which such
Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an Initial
Purchaser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as such Initial Purchaser,
and each person, if any, who controls the Company or the Parent within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company and the Parent. The Initial
Purchasers' respective obligations to contribute pursuant to this Section are
several in proportion to the principal amount of Securities set forth opposite
their respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company, the Parent or any of their respective
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of the Company or the
Parent, and shall survive delivery of the Securities to the Initial Purchasers.
SECTION 10. Termination of Agreement.
(a) Termination; General. The Representative may terminate this Agreement,
by notice to the Company and the Parent, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Offering
Memorandum, any material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Company and the Parent
and their respective subsidiaries, in each case, considered as one enterprise,
whether or not arising in the ordinary course of business, nor has there been
any developments involving a prospective material adverse change of the Company
and the Parent and their respective subsidiaries, in each case, considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the reasonable judgment of the Representative,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, (iii) if trading in any securities of the Company or the Parent
has been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New
23
<PAGE>
York Stock Exchange or in the NASDAQ System has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 7,
8 and 9 shall survive such termination and remain in full force and effect.
SECTION 11. Default by One or More of the Initial Purchasers. If one or
more of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other initial purchasers, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
each of the non-defaulting Initial Purchasers shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Offering Memorandum or in any other documents
or arrangements. As used herein, the term "Initial Purchaser" includes any
person substituted for an Initial Purchaser under this Section.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Representative at North Tower, World
Financial Center, New York, New York 10281, attention of John Thorndike,
Managing Director, notices to the Company shall be directed to it 222 West
24
<PAGE>
Washington Avenue, Madison, Wisconsin 53703, attention of Edward M. Gleason and
notices to the Parent shall be directed to it at 222 West Washington Avenue,
Madison, Wisconsin 53703, attention of Edward M. Gleason.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, the Company, the Parent and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers, the Company, the Parent and their respective
successors and the controlling persons and officers and directors referred to in
Sections 7 and 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Initial
Purchasers, the Company, the Parent and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Initial Purchaser shall be deemed to be a
successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
25
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Parent a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Initial Purchasers, the Company and the Parent in
accordance with its terms.
Very truly yours,
ALLIANT ENERGY RESOURCES, INC.
By /s/ Edward M. Gleason
-------------------------------------
Edward M. Gleason
Vice President - Treasurer and
Corporate Secretary
ALLIANT ENERGY CORPORATION
By /s/ Edward M. Gleason
-------------------------------------
Edward M. Gleason
Vice President - Treasurer and
Corporate Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC.
ABN AMRO INCORPORATED
BARCLAYS CAPITAL INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Joe R
------------------------------
Authorized Signatory
For itself and as Representative of the other Initial Purchasers named in
Schedule A hereto.
26
<PAGE>
SCHEDULE A
Name of Initial Purchaser Principal
Amount of
Securities
----------
Merrill Lynch, Pierce, Fenner & Smith Incorporated........ $125,000,000
Morgan Stanley & Co. Incorporated......................... 50,000,000
Salomon Smith Barney Inc.................................. 50,000,000
ABN Amro Incorporated..................................... 12,500,000
Barclays Capital Inc...................................... 12,000,000
---------------
Total..................................................... $250,000,000
===============
Sch A - 1
<PAGE>
SCHEDULE B
ALLIANT ENERGY RESOURCES, INC.
$250,000,000
7 3/8 % SENIOR NOTES DUE 2009
UNCONDITIONALLY GUARANTEED AS TO PAYMENT
OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
ALLIANT ENERGY CORPORATION
1. The initial public offering price of the Securities shall be 99.45% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be 98.80% of the principal amount thereof.
3. The interest rate on the Securities shall be 7 3/8% per annum.
4. The Notes will be redeemable at the Company's option in whole or in part
at any time, on at least 30 days' but not more than 60 days' prior written
notice mailed to the registered holders of the Notes, at a price equal to the
greater of (i) 100% of the principal amount of the Notes being redeemed and (ii)
the sum of the present values of the principal amount of the Notes to be
redeemed and the remaining scheduled payments of interest on the Notes from the
redemption date to November 9, 2009 discounted from their respective scheduled
payment dates to the redemption date semi-annually (assuming a 360-day year
consisting of twelve 30-day months) at a discount rate equal to the Treasury
Yield plus 20 basis points, plus accrued interest on the Notes to the redemption
date.
"Treasury Yield" means, with respect to any redemption date, the annual
rate equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes.
Sch B - 1
<PAGE>
"Comparable Treasury Price" means, with respect to any date of redemption,
(1) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding the redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on the business day in question, the
Reference Treasury Dealer Quotation for the redemption date.
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by the Company and reasonably
acceptable to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the Reference
Treasury Dealer and redemption date, the average, as determined by the Company,
of the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount and quoted in writing to the
Company by the Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding the redemption date).
"Reference Treasury Dealer" means a primary United States government
securities dealer in New York City appointed by the Company and reasonably
acceptable to the Trustee.
Sch B - 2
<PAGE>
SCHEDULE C
List of Subsidiaries
Alliant Energy Investments, Inc.
Alliant Energy International, Inc.
Alliant Energy Industrial Services, Inc.
Whiting Petroleum Corporation
Sch C - 1
<PAGE>
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) The Company is validly existing as a corporation under the laws of the
State of Wisconsin.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Offering
Memorandum and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each domestic jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable
(except for certain statutory liabilities that may be imposed by Section
180.0622(b) of the Wisconsin Business Corporation Law (the "WBCL") for unpaid
employee wages); and to the best of our knowledge, none of the outstanding
shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(v) Each Designated Subsidiary is validly existing as a corporation under
the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum and is duly qualified as a foreign
corporation to transact business and is in good standing in each domestic
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect; and, to the best of our knowledge and information, all of the
issued and outstanding capital stock of each Designated Subsidiary is owned by
the Company, directly or through subsidiaries.
(vi) The Company has all requisite corporate power and authority to execute
and deliver the Purchase Agreement and to perform its obligations thereunder.
The Purchase Agreement has been duly authorized, executed and delivered by the
Company.
(vii) The Indenture has been duly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery thereof by
the Trustee) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance
A - 1
<PAGE>
with its terms, except (A) as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws relating
to or affecting enforcement of creditors' rights generally, (B) as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and (C) as
enforcement of certain provisions thereof (specifically, provisions prohibiting
waivers or modifications by conduct of the parties or requiring waivers and
modifications to be in writing, obligations to pay attorneys' fees and other
costs and expenses that are not reasonable, and rights to indemnification
against the consequences of a party's own misconduct or to the extent deemed to
be against public policy) may be limited under the laws of the State of
Wisconsin, but the inclusion of such provisions does not affect the validity of
the Indenture, and the Indenture contains legally adequate provisions for the
realization of the principal legal rights and benefits offered thereby.
(viii) The Supplemental Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except (A) as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, (B) as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (C) as enforcement of
certain provisions thereof (specifically, provisions prohibiting waivers or
modifications by conduct of the parties or requiring waivers and modifications
to be in writing, obligations to pay attorneys' fees and other costs and
expenses that are not reasonable, and rights to indemnification against the
consequences of a party's own misconduct or to the extent deemed to be against
public policy) may be limited under the laws of the State of Wisconsin, but the
inclusion of such provisions does not affect the validity of the Supplemental
Indenture, and the Supplemental Indenture contains legally adequate provisions
for the realization of the principal legal rights and benefits offered thereby.
(ix) The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and (assuming the due authorization, execution and
delivery thereof by the Initial Purchasers) constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except (A) as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, (B) as enforcement thereof
is subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), (C) as enforcement of certain
provisions thereof (specifically, provisions prohibiting waivers or
modifications by conduct of the parties or requiring waivers and modifications
to be in writing,
A - 2
<PAGE>
obligations to pay attorneys' fees and other costs and expenses that are not
reasonable, and rights to indemnification against the consequences of a party's
own misconduct or to the extent deemed to be against public policy) may be
limited under the laws of the State of Wisconsin, but the inclusion of such
provisions does not affect the validity of the Registration Rights Agreement,
and the Registration Rights Agreement contain legally adequate provisions for
the realization of the principal legal rights and benefits offered thereby and
(D) with respect to the indemnification and contributions provisions thereof as
to which we need express no opinion.
(x) The Securities are in the form contemplated by the Indenture, have been
duly authorized by the Company and, when executed by the Company, guaranteed by
the Parent and authenticated by the Trustee in the manner provided in the
Indenture (assuming the due authorization, execution and delivery of the
Indenture by the Trustee) and issued and delivered against payment of the
purchase price therefor will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
(A) as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditor's rights generally, (B) as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and (C) as enforcement of
certain provisions thereof (specifically, provisions prohibiting waivers or
modifications by conduct of the parties or requiring waivers and modifications
to be in writing, obligations to pay attorneys' fees and other costs and
expenses that are not reasonable, and rights to indemnification against the
consequences of a party's own misconduct or to the extent deemed to be against
public policy) may be limited under the laws of the State of Wisconsin, but the
inclusion of such provisions does not affect the validity of the Securities, and
the Securities contain legally adequate provisions for the realization of the
principal legal rights and benefits offered thereby, and will be entitled to the
benefits of the Indenture.
(xi) The Securities and the Indenture conform as to legal matters in all
material respects to the descriptions thereof contained in the Offering
Memorandum.
(xii) To the best of our knowledge and based on our discussions with
officers of the Company, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any subsidiary is
a party, or to which the property of the Company or any subsidiary thereof is
subject, before or brought by any court or governmental agency or body, which
might reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in the
Purchase Agreement or the performance by the Company of its obligations
thereunder or the transactions contemplated by the Offering Memorandum;
A - 3
<PAGE>
(xiii) The information in the Offering Memorandum under the heading "United
States Federal Income Tax Considerations" to the extent that it constitutes
matters of law, summaries of legal matters, or legal conclusions, has been
reviewed by us, is correct in all material respects.
(xiv) All descriptions in the Offering Memorandum of contracts and other
documents to which the Company or any of its subsidiaries are a party, to the
extent that they describe legal matters, are accurate in all material respects.
(xv) To the best of our knowledge and based upon our discussions with
officers of the Company, neither the Company nor any of the Designated
Subsidiaries is in violation of its charter or by-laws and, no default by the
Company or any of the Designated Subsidiaries exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the Offering
Memorandum or incorporated by reference therein.
(xvi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign (other than such as have already been obtained and
such as may be required under the applicable securities laws of the various
jurisdictions in which the Securities will be offered or sold and the 1935 Act
(solely with respect to filings required to be made with the Commission
subsequent to the Closing Time) or by the 1933 Act or the 1939 Act in connection
with the exchange offer as contemplated by the Registration Rights Agreement, as
to which we need express no opinion) is necessary or required in connection with
the due authorization, execution and delivery of the Purchase Agreement or the
due execution, delivery or performance of the Registration Rights Agreement and
the Indenture by the Company or for the offering, issuance, sale or delivery of
the Securities to the Initial Purchasers or the resale by the Initial Purchasers
in accordance with the terms of the Purchase Agreement.
(xvii) It is not necessary in connection with the offer, sale and delivery
of the Securities to the Initial Purchasers and to each Subsequent Purchaser
(assuming the accuracy of the representations and warranties of the Initial
Purchasers and each Subsequent Purchaser with respect thereto) in the manner
contemplated by the Purchase Agreement and the Offering Memorandum to register
the Securities under the 1933 Act or to qualify the Indenture under the Trust
Indenture Act.
(xviii) The execution, delivery and performance of the Purchase Agreement,
the DTC Agreement, the Indenture, the Registration Rights Agreement and the
Securities and the consummation of the transactions contemplated in the Purchase
Agreement and in the Offering Memorandum (including the use of the proceeds from
the sale of the Securities as described in
A - 4
<PAGE>
the Offering Memorandum under the caption "Use Of Proceeds") and compliance by
the Company with its obligations under the Purchase Agreement, the Indenture,
the Registration Rights Agreement and the Securities do not and will not,
whether with or without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined in
Section 1(a)(xiv) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any Designated Subsidiary pursuant to any material contracts,
indentures, mortgages, deeds of trust, loan or credit agreements, notes, leases
or any other agreements or instruments set forth on Schedule A hereto, to which
the Company or any of the Designated Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company, or any Designated Subsidiary is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a
Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of the Designated
Subsidiaries, or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any U.S. government, government instrumentality
or court, having jurisdiction over the Company or any of the Designated
Subsidiaries or any of their respective properties, assets or operations.
(xix) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
(xx) The Securities satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
(xxi) The issuance of the Securities complies, and the issuance of the
Exchange Securities as contemplated in the Registration Rights Agreement will
comply with the Securities and Exchange Commission's Release No. 35-27069,
70-9455 dated as of August 26, 1999.
Nothing has come to our attention that would lead us to believe that the
Offering Memorandum or any amendment or supplement thereto (except for financial
statements and schedules and other financial or statistical data included or
incorporated by reference therein or omitted therefrom as to which we need make
no statement), at the time the Offering Memorandum was issued, at the time any
such amended or supplemented Offering Memorandum was issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering this opinion, we relied as to matters of fact (but not as to
legal conclusions), to the extent we deemed proper, on certificates of
responsible officers of the Company and public officials.
A - 5
<PAGE>
SCHEDULE A TO THE FORM OF OPINION OF COMPANY'S COUNSEL
1. 364-Day Credit Agreement dated as of October 18, 1999 among Alliant Energy
Resources, Inc., the Banks named therein, Banc One Capital Markets, Inc.,
Citibank, N.A., Salomon Smith Barney, Inc., Mellon Bank, N.A. and Wachovia
Bank N.A.
2. 3-Year Credit Agreement dated as of October 20, 1997 among IES Diversified
Inc. (n/k/a Alliant Energy Resources, Inc.), the Banks named therein, First
Chicago Capital Markets, Inc. and Citibank, N.A.
A - 6
<PAGE>
Exhibit B
FORM OF OPINION OF PARENT'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) The Parent is validly existing as a corporation under the laws of the
State of Wisconsin.
(ii) The Parent has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Offering
Memorandum and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Parent has all requisite corporate power and authority to execute
and deliver the Purchase Agreement and to perform its obligations thereunder.
The Purchase Agreement has been duly authorized, executed and delivered by the
Parent.
(iv) The Indenture has been duly authorized, executed and delivered by the
Parent and (assuming the due authorization, execution and delivery thereof by
the Trustee) constitutes a valid and binding agreement of the Parent,
enforceable against the Parent in accordance with its terms, except (A) as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting enforcement of
creditors' rights generally, (B) as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (C) as enforcement of certain provisions
thereof (specifically, provisions prohibiting waivers or modifications by
conduct of the parties or requiring waivers and modifications to be in writing,
obligations to pay attorneys' fees and other costs and expenses that are not
reasonable, and rights to indemnification against the consequences of a party's
own misconduct or to the extent deemed to be against public policy) may be
limited under the laws of the State of Wisconsin, but the inclusion of such
provisions does not affect the validity of the Indenture, and the Indenture
contains legally adequate provisions for the realization of the principal legal
rights and benefits offered thereby.
(v) The Supplemental Indenture has been duly authorized, executed and
delivered by the Parent and (assuming the due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and binding agreement of
the Parent, enforceable against the Parent in accordance with its terms, except
(A) as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, (B) as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (C) as enforcement
B - 1
<PAGE>
of certain provisions thereof (specifically, provisions prohibiting waivers or
modifications by conduct of the parties or requiring waivers and modifications
to be in writing, obligations to pay attorneys' fees and other costs and
expenses that are not reasonable, and rights to indemnification against the
consequences of a party's own misconduct or to the extent deemed to be against
public policy) may be limited under the laws of the State of Wisconsin, but the
inclusion of such provisions does not affect the validity of the Supplemental
Indenture, and the Supplemental Indenture contains legally adequate provisions
for the realization of the principal legal rights and benefits offered thereby.
(vi) The Registration Rights Agreement has been duly authorized, executed
and delivered by the Parent and (assuming the due authorization, execution and
delivery thereof by the Initial Purchasers) constitutes a valid and binding
agreement of the Parent, enforceable against the Parent in accordance with its
terms, except (A) as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, (B) as enforcement thereof
is subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), (C) as enforcement of certain
provisions thereof (specifically, provisions prohibiting waivers or
modifications by conduct of the parties or requiring waivers and modifications
to be in writing, obligations to pay attorneys' fees and other costs and
expenses that are not reasonable, and rights to indemnification against the
consequences of a party's own misconduct or to the extent deemed to be against
public policy) may be limited under the laws of the State of Wisconsin, but the
inclusion of such provisions does not affect the validity of the Registration
Rights Agreement, and the Registration Rights Agreement contains legally
adequate provisions for the realization of the principal legal rights and
benefits offered thereby and (D) with respect to the indemnification and
contributions provisions thereof as to which we need express no opinion.
(vii) The Guarantees are in the form contemplated by the Indenture, have
been duly authorized by the Parent and, when executed by the Parent and
authenticated by the Trustee in the manner provided in the Indenture (assuming
the due authorization, execution and delivery of the Indenture by the Trustee)
and issued and delivered against payment of the purchase price therefor will
constitute valid and binding obligations of the Parent, enforceable against the
Parent in accordance with their terms, except (A) as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights generally, (B) as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and (C)
as enforcement of certain provisions thereof (specifically, provisions
prohibiting waivers or modifications by conduct of the parties or requiring
waivers and modifications to be in writing, obligations to pay attorneys' fees
and other costs and expenses that are not reasonable, and rights
B - 2
<PAGE>
to indemnification against the consequences of a party's own misconduct or to
the extent deemed to be against public policy) may be limited under the laws of
the State of Wisconsin, but the inclusion of such provisions does not affect the
validity of the Guarantees, and the Guarantees contain legally adequate
provisions for the realization of the principal legal rights and benefits
offered thereby, and will be entitled to the benefits of the Indenture.
(viii) The documents incorporated by reference in the Offering Memorandum
(other than the financial statements, statistical data and supporting schedules
therein, as to which no opinion need be rendered), when they were filed with the
Commission complied as to form in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder.
(ix) To the best of our knowledge and based on our discussions with
officers of the Company, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Parent or any subsidiary is a
party, or to which the property of the Parent or any subsidiary thereof is
subject, before or brought by any court or governmental agency or body, which
might reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in the
Purchase Agreement or the performance by the Parent of its obligations
thereunder or the transactions contemplated by the Offering Memorandum.
(x) To the best of our knowledge and based upon our discussions with
officers of the Company, neither the Parent nor IES Utilities Inc., Wisconsin
Power and Light Company and Interstate Power Company (each a "Parent Significant
Subsidiary") is in violation of its charter or by-laws, and no default by the
Parent or any Parent Significant Subsidiary exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the Offering
Memorandum or incorporated by reference therein.
(xi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign (other than such as may be required under the
applicable securities laws of the various jurisdictions in which the Guarantees
will be offered or sold and under the 1935 Act (solely with respect to filings
required to be made with the Commission subsequent to the Closing Time), or by
the 1933 Act or the 1939 Act in connection with the exchange offer as
contemplated by the Registration Rights Agreement, as to which we need express
no opinion) is necessary or required in connection with the due authorization,
execution and delivery of the Purchase Agreement or the due execution, delivery
or performance of the Registration Rights Agreement and the
B - 3
<PAGE>
Indenture by the Parent or for the offering, issuance, sale or delivery of the
Guarantees to the Initial Purchasers or the resale by the Initial Purchasers in
accordance with the terms of the Purchase Agreement.
(xii) The execution, delivery and performance of the Purchase Agreement,
the DTC Agreement, the Indenture, the Registration Rights Agreement and the
Securities and the consummation of the transactions contemplated in the Purchase
Agreement and in the Offering Memorandum (including the use of the proceeds from
the sale of the Securities as described in the Offering Memorandum under the
caption "Use Of Proceeds") and compliance by the Parent with its obligations
under the Purchase Agreement, the Indenture, the Registration Rights Agreement
and the Securities (including the related guarantees) do not and will not,
whether with or without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined in
Section 1(a)(xiv) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Parent or any Parent Significant Subsidiary thereof pursuant to any material
contracts, indentures, mortgages, deeds of trust, loan or credit agreements,
notes, leases or any other agreements or instruments set forth on Schedule A
hereto, to which the Parent or any Parent Significant Subsidiary is a party or
by which it or any of them may be bound, or to which any of the property or
assets of the Parent or any Parent Significant Subsidiary is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Parent or any
Parent Significant Subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any U.S. government, government
instrumentality or court, having jurisdiction over the Parent or any Parent
Significant Subsidiary or any of their respective properties, assets or
operations.
(xiii) The Guarantees satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(xiv) The issuance of the Guarantees complies, and the issuance of the
guarantees related to the Exchange Securities as contemplated in the
Registration Rights Agreement will comply, with the Securities and Exchange
Commission's Release No. 35-27069, 70-9455 dated as of August 26, 1999.
Nothing has come to our attention that would lead us to believe that the
Offering Memorandum or any amendment or supplement thereto (except for financial
statements and schedules and other financial or statistical data included or
incorporated by reference therein or omitted therefrom as to which we need make
no statement), at the time the Offering Memorandum was issued, at the time any
such amended or supplemented Offering Memorandum was issued or at the Closing
Time, included or includes an untrue statement of a
B - 4
<PAGE>
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering this opinion, we relied as to matters of fact (but not as to
legal conclusions), to the extent we deemed proper, on certificates of
responsible officers of the Parent and public officials.
B - 5
<PAGE>
SCHEDULE A TO THE FORM OF OPINION OF PARENT'S COUNSEL
1. Indenture of Mortgage or Deed of Trust dated August 1, 1941, between
Wisconsin Power and Light Company ("WP&L") and First Wisconsin Trust
Company and George B. Luhman, as Trustees.
2. Rights Agreement, dated January 20, 1999, between Interstate Energy
Corporation and Firstar Bank Milwaukee, N.A.
3. Indenture, dated as of June 20, 1997, between WP&L and Firstar Trust
Company, as Trustee, relating to debt securities.
4. Officers' Certificate, dated as of June 25, 1997, creating the 7%
debentures due June 15, 2007 of WP&L.
5. Officers' Certificate, dated as of October 27, 1998, creating the 5.70%
debentures due October 15, 2008 of WP&L.
6. Indenture of Mortgage and Deed of Trust, dated as of September 1, 1993,
between IES Utilities Inc. (formerly Iowa Electric Light and Power Company
("IE")) and the First National Bank of Chicago, as Trustee ("1993
Indenture").
7. Supplemental Indentures to 1993 Indenture; First through Fifth.
8. Indenture of Mortgage and Deed of Trust, dated as of August 1, 1940,
between IES Utilities Inc. (formerly IE) and the First National Bank of
Chicago, Trustee ("1940 Indenture").
9. Supplemental Indentures to the 1940 Indenture; First through Sixty-Third.
10. Indenture or Deed of Trust dated as of February 1, 1923, between IES
Utilities Inc. (successor to Iowa Southern Utilities Company ("IS") as a
result of the merger of IS and IE) and The Northern Trust Company (The
First National Bank of Chicago, successor) and Harold H. Rockwell (Richard
D. Manella, successor), as Trustees ("1923 Indenture").
11. Supplemental Indentures to the 1923 Indenture; 24 Supplemental Indentures
dated May 1, 1940 through December 1, 1994.
12. Indenture (for Unsecured Subordinated Debt Securities), dated as of
December 1, 1995, between IES Utilities Inc. and the First National Bank of
Chicago, as Trustee.
B - 6
<PAGE>
13. Indenture (for Senior Unsecured Debt Securities), dated as of August 1,
1997, between IES Utilities Inc. and the First National Bank of Chicago, as
Trustee.
14. The Original through the Nineteenth Supplemental Indentures of Interstate
Power Company to The Chase Manhattan Bank and Carl E. Buckley and C. J.
Heinzelmann, as Trustees, dated January 1, 1948 securing First Mortgage
Bonds.
15. Twentieth Supplemental Indenture of Interstate Power Company to The Chase
Manhattan Bank and C.J. Heinzelmann, as Trustees, dated May 15, 1993.
16. Second Amended and Restated Credit Agreement dated as of September 17, 1987
between Arnold Fuel, Inc. and the First National Bank of Chicago and the
Amended and Restated Consent and Agreement dated as of September 17, 1987
by IES Utilities Inc.
B-7
Execution Copy
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated As of November 9, 1999
among
ALLIANT ENERGY RESOURCES, INC.,
ALLIANT ENERGY CORPORATION
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
MORGAN STANLEY & CO. INCORPORATED,
SALOMON SMITH BARNEY INC.,
ABN AMRO INCORPORATED
and
BARCLAYS CAPITAL INC.
================================================================================
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 9th day of November, 1999, among Alliant Energy Resources,
Inc., a Wisconsin corporation (the "Company"), Alliant Energy Corporation, a
Wisconsin corporation (the "Parent"), and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc., ABN
Amro Incorporated and Barclays Capital Inc. (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
November 4, 1999, among the Company, the Parent, as guarantor, and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of an aggregate of $250,000,000 principal
amount of the Company's 7 3/8% Senior Notes due 2009, (the "Securities"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company and the Parent have agreed to provide to the Initial Purchasers and
their direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 Act" shall mean the Securities Exchange Act of l934,
as amended from time to time.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble
and shall also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, provided, however, that
such
<PAGE>
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"Exchange Offer" shall mean the exchange offer by the
Company and the Parent of Exchange Securities for Registrable
Securities pursuant to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration
under the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if applicable,
on another appropriate form), and all amendments and supplements to
such registration statement, including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by
reference therein.
"Exchange Period" shall have the meaning set forth in
Section 2.1 hereof.
"Exchange Securities" shall mean the 7 3/8% Senior Notes due
2009, issued by the Company under the Indenture containing terms
identical to the Securities in all material respects (except for
references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the
Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale
of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of November 4, 1999, between the Company, the
Parent and Firstar Bank, N.A., as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the
meaning set forth in the preamble.
2
<PAGE>
"Majority Holders" shall mean the Holders of a majority of
the aggregate principal amount of Outstanding (as defined in the
Indenture) Registrable Securities; provided that whenever the consent
or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the
Company and other obligors on the Securities or any Affiliate (as
defined in the Indenture) of the Company shall be disregarded in
determining whether such consent or approval was given by the Holders
of such required percentage amount.
"Parent" shall have the meaning set forth in the preamble
and shall also include the Parent's successors.
"Participating Broker-Dealer" shall mean any of Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, Salomon Smith Barney Inc., ABN Amro Incorporated and
Barclays Capital Inc. and any other broker-dealer which makes a market
in the Securities and exchanges Registrable Securities in the Exchange
Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Private Exchange" shall have the meaning set forth in
Section 2.1 hereof.
"Private Exchange Securities" shall have the meaning set
forth in Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
3
<PAGE>
"Registrable Securities" shall mean the Securities and, if
issued, the Private Exchange Securities; provided, however, that
Securities and, if issued, the Private Exchange Securities, shall
cease to be Registrable Securities when (i) a Registration Statement
with respect to such Securities shall have been declared effective
under the 1933 Act and such Securities shall have been disposed of
pursuant to such Registration Statement, (ii) such Securities have
been sold to the public pursuant to Rule l44 (or any similar provision
then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities shall have ceased to be outstanding or (iv) the Exchange
Offer is consummated (except in the case of Securities purchased from
the Company and continued to be held by the Initial Purchasers).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company and the Parent
with this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its
counsel) that is required to be retained by any holder of Registrable
Securities in accordance with the rules and regulations of the NASD,
(ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws and compliance with the rules of the
NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of
any of the Exchange Securities or Registrable Securities and any
filings with the NASD), (iii) all expenses of any Persons in preparing
or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges, (v) all rating
agency fees, (vi) the fees and disbursements of counsel for the
Company and the Parent and of the independent public accountants of
the Company and the Parent, including the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, (viii) in the case of a
Shelf Registration Statement, the reasonable fees and disbursements of
one special counsel designated in writing by the Majority Holders to
represent the Holders of Registrable Securities and (ix) any fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the fees and expenses of any
special experts retained by
4
<PAGE>
the Company and the Parent in connection with any Registration
Statement, but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Registration Statement" shall mean any registration
statement of the Company and the Parent which covers any of the
Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to
any such Registration Statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Representative" shall mean Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as representative of the Initial Purchasers.
"SEC" shall mean the Securities and Exchange Commission or
any successor agency or government body performing the functions
currently performed by the United States Securities and Exchange
Commission.
"SEC Order" shall have the meaning set forth in Section 2.1.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Parent pursuant to the
provisions of Section 2.2 of this Agreement which covers all of the
Registrable Securities or all of the Private Exchange Securities on an
appropriate form under Rule 415 under the 1933 Act, or any similar
rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
2. Registration Under the 1933 Act.
2.1 Exchange Offer. To the extent not prohibited by any applicable law
or applicable interpretation of the staff of the SEC, the Company and the Parent
shall, for the benefit of the Holders, at the cost of the Company and the
Parent, (A) prepare and, as soon as practicable but not later than 135 days
following the Closing Date, file with the SEC an Exchange Offer Registration
Statement on an appropriate form under the 1933
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Act with respect to a proposed Exchange Offer and the issuance and delivery to
the Holders, in exchange for the Registrable Securities (other than Private
Exchange Securities), of a like principal amount of Exchange Securities, (B) use
their reasonable best efforts to cause the Exchange Offer Registration Statement
to be declared effective under the 1933 Act within 180 days of the Closing Date,
(C) use their reasonable best efforts to keep the Exchange Offer Registration
Statement effective until the closing of the Exchange Offer and (D) use their
reasonable best efforts to cause the Exchange Offer to be consummated not later
than 45 days after the effective date of the Exchange Offer Registration
Statement. The Exchange Securities will be issued under the Indenture. Upon the
effectiveness of the Exchange Offer Registration Statement, the Company and the
Parent shall promptly commence the Exchange Offer, it being the objective of
such Exchange Offer to enable each Holder eligible and electing to exchange
Registrable Securities for Exchange Securities (assuming that such Holder (a) is
not an affiliate of the Company within the meaning of Rule 405 under the 1933
Act, (b) is not a broker-dealer tendering Registrable Securities acquired
directly from the Company for its own account, (c) acquired the Exchange
Securities in the ordinary course of such Holder's business and (d) has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the 1933 Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company and the Parent
shall:
(a) mail as promptly as practicable to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents;
(b) keep the Exchange Offer open for acceptance for a period
of not less than 20 business days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable
Securities at any time prior to 5:00 p.m. (Eastern Time), on the last
business day of the Exchange Period, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange,
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and a statement that such Holder is withdrawing such Holder's election
to have such Securities exchanged;
(e) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but
will not retain any rights under this Agreement (except in the case of
the Initial Purchasers and Participating Broker-Dealers as provided
herein); and
(f) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Company and the Parent upon
the request of any Initial Purchaser shall, simultaneously with the delivery of
the Exchange Securities in the Exchange Offer and subject to compliance with
applicable securities laws, issue and deliver to such Initial Purchaser in
exchange (the "Private Exchange") for the Securities held by such Initial
Purchaser, a like principal amount of debt securities of the Company on a senior
basis, that are identical (except that such securities shall bear appropriate
transfer restrictions) to the Exchange Securities (the "Private Exchange
Securities").
The Exchange Securities and the Private Exchange Securities shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such
qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the
Private Exchange Securities shall be subject to such transfer restrictions. The
Indenture or such indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities shall vote and consent together
on all matters as one class and that none of the Exchange Securities, the
Private Exchange Securities or the Securities will have the right to vote or
consent as a separate class on any matter. The Private Exchange Securities shall
be of the same series as and the Company and the Parent shall use all
commercially reasonable efforts to have the Private Exchange Securities bear the
same CUSIP number as the Exchange Securities. Neither the Company nor the Parent
shall have any liability under this Agreement solely as a result of such Private
Exchange Securities not bearing the same CUSIP number as the Exchange
Securities.
As soon as practicable after the close of the Exchange Offer and/or
the Private Exchange, as the case may be, the Company and the Parent shall:
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(i) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities properly tendered
pursuant to the Private Exchange;
(iii) deliver to the Trustee for cancellation all
Registrable Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver
Exchange Securities or Private Exchange Securities, as the case may
be, to each Holder of Registrable Securities so accepted for exchange
in a principal amount equal to the principal amount of the Registrable
Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security will
accrue from the last date on which interest was paid on the Registrable
Securities surrendered in exchange therefor or, if no interest has been paid on
the Registrable Securities, from the date of original issuance. The Exchange
Offer and the Private Exchange shall not be subject to any conditions, other
than (i) that the Exchange Offer or the Private Exchange, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange, (iii)
that each Holder of Registrable Securities exchanged in the Exchange Offer shall
have represented that all Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and that at the time of the
consummation of the Exchange Offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
1933 Act) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available, (iv) that no action or proceeding
shall have been instituted or threatened in any court or by or before any
governmental agency with respect to the Exchange Offer or the Private Exchange
which, in the judgment of the Company and the Parent, would reasonably be
expected to impair the ability of the Company and the Parent to proceed with the
Exchange Offer or the Private Exchange and that the Exchange Offer and the
Private Exchange shall comply with the provisions of the SEC's Release No.
35-27069, 70-9455 dated as of August 26, 1999 by which the Parent and the
Company are bound (the "SEC Order"). The Company and the Parent shall inform the
Initial Purchasers of the names and addresses of the Holders to whom the
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Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Company and the Parent are not permitted to effect the Exchange Offer
as contemplated by Section 2.1 hereof, (ii) if for any other reason the Exchange
Offer Registration Statement is not declared effective within 180 days following
the Closing Date or the Exchange Offer is not consummated within 45 days after
effectiveness of the Exchange Offer Registration Statement (provided that if the
Exchange Offer Registration Statement shall be declared effective after such
180-day period or if the Exchange Offer shall be consummated after such 45-day
period, then the obligation of the Company and the Parent under this clause (ii)
arising from the failure of the Exchange Offer Registration Statement to be
declared effective within such 180-day period or the failure of the Exchange
Offer to be consummated within such 45-day period, respectively, shall
terminate), (iii) upon the request of any of the Initial Purchasers within 90
days following the consummation of the Exchange Offer, (iv) if, as a result of
any changes in law, SEC rules or regulations or applicable interpretations
thereof by the staff of the SEC or otherwise, a Holder (other than an Initial
Purchaser holding securities acquired directly from the Company) is not
permitted to participate in the Exchange Offer or does not receive fully
tradeable Exchange Securities pursuant to the Exchange Offer or (v) if, unless
the Company otherwise determines, at the time of issuance of the Exchange
Securities or the Private Exchange Securities, the interest rate for such
securities will be 300 basis points above the yield to maturity of a United
States Treasury obligation having a remaining term equal to the average life of
such security, then in case of each of clauses (i) through (v) the Company and
the Parent shall, at their cost:
(a) As promptly as practicable, file with the SEC, and
thereafter shall use their reasonable best efforts to cause to be
declared effective as promptly as practicable but no later than 210
days after the Closing Date, a Shelf Registration Statement relating
to the offer and sale of the Registrable Securities by the Holders
from time to time in accordance with the methods of distribution
elected by the Majority Holders participating in the Shelf
Registration and set forth in such Shelf Registration Statement.
(b) Use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period
of two years from the Closing Date, or for such shorter period that
will terminate when all Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant
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to the Shelf Registration Statement or cease to be outstanding or
otherwise to be Registrable Securities (the "Effectiveness Period");
provided, however, that the Effectiveness Period in respect of the
Shelf Registration Statement shall be extended to the extent required
to permit dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the 1933 Act and as otherwise provided
herein.
(c) Notwithstanding any other provisions hereof, use their
reasonable best efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any supplement thereto complies in all material respects
with the 1933 Act and the rules and regulations thereunder, (ii) any
Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to
time), does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading;
provided, however, that clauses (ii) and (iii) shall not apply to any
information relating to any Initial Purchaser or any Holder furnished
to the Company in writing by such Initial Purchaser or Holder
expressly for use in the Shelf Registration Statement.
The Company and the Parent further agree, if necessary, to supplement
or amend the Shelf Registration Statement, as required by Section 3(b) below,
and to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
2.3 Expenses. The Company and the Parent shall pay all Registration
Expenses in connection with the registration pursuant to Section 2.1 or 2.2.
Each Holder shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
2.4. Effectiveness.
(a) The Company and the Parent will be deemed not to have
used their reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the
case may be, to become, or to remain, effective during the requisite
period if the Company and the Parent
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voluntarily take any action that would, or omit to take any action
which omission would, result in any such Registration Statement not
being declared effective or in the Holders of Registrable Securities
covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period as and to the extent
contemplated hereby, unless such action is required by applicable law
or, in the case of the Exchange Offer Registration Statement, such
action would violate the provisions of the SEC Order.
(b) An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to
Section 2.2 hereof will not be deemed to have become effective unless
it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable
Securities pursuant to an Exchange Offer Registration Statement or a
Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be
deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to
such Registration Statement may legally resume.
2.5 Interest. The Indenture executed in connection with the Securities
will provide that in the event that (a) the Exchange Offer Registration
Statement is not filed with the Commission on or prior to the 135th calendar day
following the Closing Date, (b) the Exchange Offer Registration Statement has
not been declared effective on or prior to the 180th calendar day following the
Closing Date, (c) the Exchange Offer is not consummated, on or prior to the 45th
calendar day following the effective date of the Exchange Offer Registration
Statement or (d) if required, the Shelf Registration Statement is not declared
effective on or prior to the 210th calendar day following the Closing Date (each
such event referred to in clauses (a) through (d) above, a "Registration
Default"), the interest rate borne by the Securities shall be increased
("Additional Interest") by one-quarter of one percent per annum upon the
occurrence of a Registration Default, which rate will increase by an additional
one-quarter of one percent at the beginning of the subsequent 90-day period that
such Additional Interest continues to accrue under any such circumstance,
provided that the maximum aggregate increase in the interest rate will in no
event exceed one-half of one percent (0.50%) per annum. Following the cure of
all Registration Defaults the accrual of Additional Interest will cease and the
interest rate will revert to the original rate.
If the Shelf Registration Statement is unusable by the Holders for any
reason after the Shelf Registration Statement has been declared effective by the
SEC, and the aggregate number of days in any consecutive twelve-month period for
which the Shelf Registration Statement shall not be usable exceeds 30 days in
the aggregate, then the
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interest rate borne by the Securities will be increased by 0.25% per annum of
the principal amount of the Securities for the first 90-day period (or portion
thereof) beginning on the 31st day following the date that such Shelf
Registration Statement ceases to be usable, which rate shall be increased by an
additional 0.25% per annum of the principal amount of the Securities at the
beginning of each subsequent 90-day period, provided that the maximum aggregate
increase in the interest rate will in no event exceed one-half of one percent
(0.50%) per annum. Any amounts payable under this paragraph shall also be deemed
"Additional Interest" for purposes of this Agreement. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
the Securities will be reduced to the original interest rate if the Company and
the Parent are otherwise in compliance with this Agreement at such time.
Additional Interest shall be computed based on the actual number of days elapsed
in each 90-day period in which the Shelf Registration Statement is unusable.
The Company and the Parent shall notify the Trustee within three
business days after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "Event Date"). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the benefit
of the Holders of Registrable Securities, on or before the applicable semiannual
interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date to the record Holder of Securities entitled to
receive the interest payment to be paid on such date as set forth in the
Indenture. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the day following the applicable Event Date.
3. Registration Procedures.
In connection with the obligations of the Company and the Parent with
respect to Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the
Company and the Parent shall:
(a) prepare and file with the SEC a Registration Statement,
within the relevant time period specified in Section 2, on the
appropriate form under the 1933 Act, which form (i) shall be selected
by the Company and the Parent, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities
by the selling Holders thereof, (iii) shall comply as to form in all
material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required
by the SEC to be filed therewith or incorporated by reference therein
and (iv) shall comply in all material respects with the requirements
of Regulation S-T under the 1933 Act,
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and use their reasonable best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; and cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all
securities covered by each Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five business days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holders that
the distribution of Registrable Securities will be made in accordance
with the method selected by the Majority Holders participating in the
Shelf Registration; (ii) furnish to each Holder of Registrable
Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment
or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits in order to
facilitate the public sale or other disposition of the Registrable
Securities; and (iii) hereby consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use their reasonable best efforts to register or qualify
the Registrable Securities under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of
an underwritten offering of Registrable Securities shall reasonably
request by the time the applicable Registration Statement is declared
effective by the SEC, and do any and all other acts and things which
may be reasonably necessary or advisable to enable each such Holder
and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided,
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however, that neither the Company nor the Parent shall be required to
(i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), or (ii) take any action which would subject
it to general service of process or taxation in any such jurisdiction
where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities
under a Shelf Registration or any Participating Broker-Dealer who has
notified the Company and the Parent that it is utilizing the Exchange
Offer Registration Statement as provided in paragraph (f) below and,
if requested by such Holder or Participating Broker-Dealer, confirm
such advice in writing promptly (i) when a Registration Statement has
become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the SEC
or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the representations and
warranties of the Company and the Parent contained in any underwriting
agreement, securities sales agreement or other similar agreement, if
any, relating to the offering cease to be true and correct in all
material respects, (v) of the happening of any event or the discovery
of any facts during the period a Shelf Registration Statement is
effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not
misleading, (vi) of the receipt by the Company or the Parent of any
notification with respect to the suspension of the qualification of
the Registrable Securities or the Exchange Securities, as the case may
be, for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and (vii) of any determination by the
Company and the Parent that a post-effective amendment to such
Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution" which section shall be
reasonably acceptable to Merrill Lynch on behalf of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff
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of the SEC with respect to the potential "underwriter" status of any
broker-dealer that holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Securities to be received by
such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or
such positions or policies, in the reasonable judgment of Merrill
Lynch on behalf of the Participating Broker-Dealers and its counsel,
represent the prevailing views of the staff of the SEC, including a
statement that any such broker-dealer who receives Exchange Securities
for Registrable Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating Broker-Dealer
who has delivered to the Company and the Parent the notice referred to
in Section 3(e), without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as
such Participating Broker-Dealer may reasonably request, (iii) hereby
consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto,
by any Person subject to the prospectus delivery requirements of the
SEC, including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, and (iv) include in
the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the
following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Securities, the
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the 1933 Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company and the Parent agree to deliver to the Initial
Purchasers on behalf of
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the Participating Broker-Dealers upon the effectiveness of the
Exchange Offer Registration Statement (i) an opinion of counsel or
opinions of counsel substantially in the form attached hereto as
Exhibit A, (ii) officers' certificates substantially in the form
customarily delivered in a public offering of debt securities and
(iii) a comfort letter or comfort letters in customary form to the
extent permitted by Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accountants (or if such a
comfort letter is not permitted, an agreed upon procedures letter in
customary form) from the independent certified public accountants of
the Company and the Parent (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or the
Parent or of any business acquired by the Company or the Parent for
which financial statements are, or are required to be, included in the
Registration Statement) at least as broad in scope and coverage as the
comfort letter or comfort letters delivered to the Initial Purchasers
in connection with the initial sale of the Securities to the Initial
Purchasers;
(g) (i) in the case of an Exchange Offer, furnish counsel
for the Initial Purchasers and (ii) in the case of a Shelf
Registration, furnish counsel for the Holders of Registrable
Securities copies of any comment letters received from the SEC or any
other request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus
or for additional information;
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, and each underwriter, if any,
without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules (without documents incorporated
therein by reference and all exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders or the underwriters, if any, may
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reasonably request at least three business days prior to the closing
of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts, each as contemplated by
Sections 3(e)(v) and 3(e)(vi) hereof, as promptly as practicable after
the occurrence of such an event, use their reasonable best efforts to
prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities
or Participating Broker-Dealers, such Prospectus will not contain at
the time of such delivery any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or will remain so qualified. At such time as such public
disclosure is otherwise made or the Company and the Parent determine
that such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted material
fact, the Company and the Parent agree promptly to notify each Holder
of such determination and to furnish each Holder such number of copies
of the Prospectus as amended or supplemented, as such Holder may
reasonably request;
(l) in the case of a Shelf Registration, a reasonable time
prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by reference
into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the
Initial Purchasers on behalf of such Holders; and make representatives
of the Company and the Parent as shall be reasonably requested by the
Holders of Registrable Securities, or the Initial Purchasers on behalf
of such Holders, available for discussion of such document upon
reasonable advance notice. In connection with such discussions, the
Holders or the Initial Purchasers, on behalf of such Holders, shall
use their reasonable best efforts to minimize any disruption to the
business of the Company and the Parent;
(m) obtain a CUSIP number for all Exchange Securities,
Private Exchange Securities or Registrable Securities, as the case may
be, not later than the effective date of a Registration Statement, and
provide the Trustee with certificates for the Exchange Securities,
Private Exchange Securities or the Registrable Securities, as the case
may be, in a form eligible for deposit with the Depositary;
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(n) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with
the terms of the TIA and (iii) execute, and use their reasonable best
efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all other
customary and appropriate actions in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection
whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration:
(i) make such representations and warranties to
the Holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by
them;
(ii) obtain opinions of counsel to the Company and
the Parent and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the
holders of a majority in principal amount of the Registrable
Securities being sold) addressed to each selling Holder and
the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of
the Company and the Parent (and, if necessary, any other
independent certified public accountants of any subsidiary
of the Company or the Parent or of any business acquired by
the Company or the Parent for which financial statements
are, or are required to be, included in the Registration
Statement) addressed to the underwriters, if any, and use
reasonable efforts to have such letter addressed to the
selling Holders of Registrable Securities (to the extent
consistent with Statement on Auditing Standards No. 72 of
the American Institute of Certified Public Accounts), such
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<PAGE>
letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten
offerings;
(iv) enter into a securities sales agreement with
the Holders and an agent of the Holders providing for, among
other things, the appointment of such agent for the selling
Holders for the purpose of soliciting purchases of
Registrable Securities, which agreement shall be in form,
substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section or, at the request of
any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as
may be reasonably requested and as are customarily delivered
in similar offerings to the Holders of a majority in
principal amount of the Registrable Securities being sold
and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration
Statement (and each post-effective amendment thereto) and (ii) each closing
under any underwriting or similar agreement as and to the extent required
thereunder;
(p) in the case of a Shelf Registration or if a Prospectus is required
to be delivered by any Participating Broker-Dealer in the case of an Exchange
Offer, make available for inspection by representatives of the Holders of the
Registrable Securities, any underwriters participating in any disposition
pursuant to a Shelf Registration Statement, any Participating Broker-Dealer and
any counsel or accountant retained by any of the foregoing, all financial and
other records, pertinent corporate documents and properties of the Company and
the Parent reasonably requested by any such persons, and cause the respective
officers, directors, employees, and any other agents of the Company and the
Parent to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection with a
Registration Statement, and make such representatives of the Company and the
Parent available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers;
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(q) (i) in the case of an Exchange Offer Registration Statement, a
reasonable time prior to the filing of any Exchange Offer Registration
Statement, any Prospectus forming a part thereof, any amendment to an Exchange
Offer Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Initial Purchasers and to counsel to the
Holders of Registrable Securities and make such changes in any such document
prior to the filing thereof as the Initial Purchasers or counsel to the Holders
of Registrable Securities may reasonably request and, except as otherwise
required by applicable law, not file any such document in a form to which the
Initial Purchasers on behalf of the Holders of Registrable Securities and
counsel to the Holders of Registrable Securities shall not have previously been
advised and furnished a copy of or to which the Initial Purchasers on behalf of
the Holders of Registrable Securities or counsel to the Holders of Registrable
Securities shall reasonably object, and make the representatives of the Company
and the Parent available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers; and
(ii) in the case of a Shelf Registration, a reasonable time
prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Holders of Registrable Securities, to
the Initial Purchasers, to counsel for the Holders and to the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any, make such changes in any such document prior to
the filing thereof as the Initial Purchasers, the counsel to the
Holders or the underwriter or underwriters reasonably request and not
file any such document in a form to which the Majority Holders, the
Initial Purchasers on behalf of the Holders of Registrable Securities,
counsel for the Holders of Registrable Securities or any underwriter
shall not have previously been advised and furnished a copy of or to
which the Majority Holders, the Initial Purchasers of behalf of the
Holders of Registrable Securities, counsel to the Holders of
Registrable Securities or any underwriter shall reasonably object, and
make the representatives of the Company and the Parent available for
discussion of such document as shall be reasonably requested by the
Holders of Registrable Securities, the Initial Purchasers on behalf of
such Holders, counsel for the Holders of Registrable Securities or any
underwriter.
(r) in the case of a Shelf Registration, use their
reasonable best efforts to cause all Registrable Securities to be
listed on any securities exchange on
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<PAGE>
which similar debt securities issued by the Company or the Parent are
then listed if requested by the Majority Holders, or if requested by
the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;
(s) in the case of a Shelf Registration, use their
reasonable best efforts to cause the Registrable Securities to be
rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or underwriters
of an underwritten offering of Registrable Securities, if any;
(t) otherwise comply with all applicable rules and
regulations of the SEC and make available to its security holders, as
soon as reasonably practicable, an earnings statement of the Parent
covering at least 12 months which shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder;
(u) cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration, in the
performance of any due diligence investigation by any underwriter and
its counsel (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations
of the NASD); and
(v) upon consummation of an Exchange Offer or a Private
Exchange, obtain a customary opinion of counsel to the Company and the
Parent addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or Private
Exchange, and which includes an opinion that (i) each of the Company
and the Parent has duly authorized, executed and delivered the
Exchange Securities and/or Private Exchange Securities, as applicable,
and the related indenture, and (ii) each of the Exchange Securities
and related indenture constitute a legal, valid and binding obligation
of the Company and the Parent, enforceable against the Company and the
Parent in accordance with its respective terms (with customary
exceptions).
In the case of a Shelf Registration Statement, the Company and the
Parent may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Securities (i) to furnish to
the Company and the Parent such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company and the Parent may from time to time reasonably request and (ii) to
agree in writing to be bound by this Agreement, including the indemnification
provisions.
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In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company and the Parent of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Company and the Parent, such
Holder will deliver to the Company and the Parent (at its expense) all copies in
such Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice.
In the event that the Company and the Parent fail to effect the
Exchange Offer or file any Shelf Registration Statement and maintain the
effectiveness of any Shelf Registration Statement as provided herein, neither
the Company nor the Parent shall file any Registration Statement with respect to
any securities (within the meaning of Section 2(1) of the 1933 Act) of the
Company or the Parent other than Registrable Securities; notwithstanding the
foregoing, the Company and the Parent shall be permitted to file registration
statements solely to register securities issued pursuant to employee benefit
plans, qualified stock option plans or other employee compensation plans.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Company and the Parent. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
4. Indemnification; Contribution.
(a) The Company and the Parent jointly and severally agree
to indemnify and hold harmless the Initial Purchasers, each Holder,
each Participating Broker-Dealer, each Person who participates as an
underwriter (any such Person being an "Underwriter") and each Person,
if any, who controls any Holder or Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
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<PAGE>
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or
any amendment or supplement thereto) pursuant to which
Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents
incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein
not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided
that (subject to Section 4(d) below) any such settlement is
effected with the written consent of the Company and the
Parent; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by the Holder or Underwriter
expressly for use in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
23
<PAGE>
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Parent the Initial
Purchasers, each Underwriter and the other selling Holders, and each
of their respective directors and officers, and each Person, if any,
who controls the Company, the Parent, the Initial Purchasers, any
Underwriter or any other selling Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Shelf Registration Statement (or any amendment
thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information with respect to such Holder furnished to the Company by
such Holder expressly for use in the Shelf Registration Statement (or
any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); provided, however, that no such Holder shall be
liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure so to notify an indemnifying party shall
not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. In
addition, the indemnifying party shall be entitled to, to the extent
that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense of any claim or action brought against an
indemnified party with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense
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<PAGE>
thereof other than reasonable costs of investigation; provided,
however, that the Representative shall have the right to employ one
counsel to represent jointly it and those other Initial Purchasers and
their respective officers, employees and controlling persons who may
be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Initial Purchasers against the Company
and the Parent under this Section 4 if, in the reasonable judgment of
the Representative, either (i) there is an actual or potential
conflict between the position of the Company and the Parent on the one
hand and the Initial Purchasers on the other hand or (ii) there may be
defenses available to it or them that are different from or additional
to those available to the Company and Parent (in any of which events
the Company shall not have the right to direct the defense of such
action on behalf of the Representative with respect to such different
defenses), in any of which events such reasonable fees and expenses
shall be borne by the Company and Parent. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is
for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such
25
<PAGE>
losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate
to reflect the relative fault of the Company and the Parent on the one
hand and the Holders and the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative fault of the Company and the Parent on the one hand and
the Holders and the Initial Purchasers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Parent, the Holders or
the Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Parent, the Holders and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section
4 were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
4 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company, the Parent and
each Person, if any, who controls the
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Company or the Parent within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company and the Parent. The Initial Purchasers' respective obligations to
contribute pursuant to this Section 4 are several in proportion to the principal
amount of Securities set forth opposite their respective names in Schedule A to
the Purchase Agreement and not joint.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Parent is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act, the Parent
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Parent ceases to be so
required to file such reports, the Parent covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the 1933
Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act and it will take such
further action as any Holder of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Parent will deliver to such Holder a written
statement as to whether it has complied with such requirements. The Company
shall not be subject to the requirements of this Section 5.1, provided, that, it
obtains no-action relief from the SEC regarding its reporting requirements under
Section 13 or 15 of the 1934 Act and under the 1933 Act.
5.2 No Inconsistent Agreements. Neither the Company nor the Parent has
entered into and neither the Company nor the Parent will after the date of this
Agreement enter into any agreement which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not and will not for the term of this Agreement in any way conflict
with the rights granted to the holders of the Company's or the Parent's other
issued and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless
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<PAGE>
the Company and the Parent have obtained the written consent of Holders of at
least a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company or the Parent, as the case may be, by means of a notice given in
accordance with the provisions of this Section 5.4, which address initially is
the address set forth in the Purchase Agreement with respect to the Initial
Purchasers; (b) if to the Company, initially at the Company's address set forth
in the Purchase Agreement, and thereafter at such other address of which notice
is given in accordance with the provisions of this Section 5.4 and (c) if to the
Parent, initially at the Parent's address set forth in Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to
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the agreements made hereunder between the Company and the Parent, on the one
hand, and the Holders, on the other hand, and shall have the right to enforce
such agreements directly to the extent they deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder. Each
Holder of Registrable Securities shall be a third party beneficiary to the
agreements made hereunder between the Company and the Parent, on the one hand,
and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
5.7. Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company and the Parent acknowledge
that any failure by the Company and the Parent to comply with its obligations
under Sections 2.1 through 2.4 hereof may result in material irreparable injury
to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce the
obligations of the Company and the Parent under Sections 2.1 through 2.4 hereof.
5.8. Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities and the related guarantees, the Company
and the Parent will not, and will cause their "affiliates" (as such term is
defined in Rule 144(a)(1) under the 1933 Act) not to, resell any Securities and
related guarantees which are "restricted securities" (as such term is defined
under Rule 144(a)(3) under the 1933 Act) that have been reacquired by any of
them and shall immediately upon any purchase of any such Securities and related
guarantees submit such Securities and related guarantees to the Trustee for
cancellation.
5.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
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5.12 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALLIANT ENERGY RESOURCES, INC.
By: /s/ Edward M. Gleason
-----------------------------------
Edward M. Gleason
Vice President - Treasurer and
Corporate Secretary
ALLIANT ENERGY CORPORATION,
By: /s/ Edward M. Gleason
-----------------------------------
Edward M. Gleason
Vice President - Treasurer and
Corporate Secretary
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC.
ABN AMRO INCORPORATED
BARCLAYS CAPITAL INC.
BY: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Russell Robertson
-----------------------------------
Name: Russell Robertson
Title: Managing Director
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Exhibit A
Form of Opinion of Counsel
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
ABN Amro Incorporated
Barclays Capital Inc.
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as counsel for Alliant Energy Resources, Inc., a
Wisconsin corporation (the "Company"), and Alliant Energy Corporation, a
Wisconsin corporation (the "Parent"), in connection with the sale by the Company
to the Initial Purchasers (as defined below) of $250,000,000 aggregate principal
amount of 7 3/8% Senior Notes due 2009 of the Company pursuant to the Purchase
Agreement dated November 4, 1999 (the "Purchase Agreement") among the Company,
the Parent, as guarantor and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc., ABN Amro
Incorporated and Barclays Capital Inc. (collectively, the "Initial Purchasers")
and the filing by the Company and the Parent of an Exchange Offer Registration
Statement (the "Registration Statement") in connection with an Exchange Offer to
be effected pursuant to the Registration Rights Agreement (the "Registration
Rights Agreement"), dated November 9, 1999 among the Company, the Parent and the
Initial Purchasers. This opinion is furnished to you pursuant to Section 3(f)(B)
of the Registration Rights Agreement. Unless otherwise defined herein,
capitalized terms used in this opinion that are defined in the Registration
Rights Agreement are used herein as so defined.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In rendering this opinion, as to
all matters of fact relevant to this opinion, we have assumed the completeness
and accuracy of, and are relying solely upon, the representations and warranties
of the Company and the Parent set forth in the Purchase Agreement and the
statements set forth in certificates of public officials and officers of the
Company and the Parent, without making any independent investigation or inquiry
with respect to the completeness or accuracy of such representations, warranties
or statements, other
<PAGE>
than a review of the certificate of incorporation, by-laws and relevant minute
books of the Company and the Parent.
Based on and subject to the foregoing, we are of the opinion that:
1. The Exchange Offer Registration Statement and the Prospectus (other
than the financial statements, notes or schedules thereto and other financial
and statistical data and supplemental schedules included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which such
counsel need express no opinion), comply as to form in all material respects
with the requirements of the 1933 Act and the applicable rules and regulations
promulgated under the 1933 Act.
We have participated in the preparation of the Registration Statement
and the Prospectus and in the course thereof have had discussions with
representatives of the Underwriters, officers and other representatives of the
Company, the Parent and Arthur Andersen LLP, the independent public accountants
of the Company and the Parent, during which the contents of the Registration
Statement and the Prospectus were discussed. We have not, however, independently
verified and are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus. Based on our participation as
described above, nothing has come to our attention that would lead us to believe
that the Registration Statement (except for financial statements and schedules
and other financial and statistical data included therein as to which we make no
statement) contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and other
financial and statistical data included therein, as to which such counsel need
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented Prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Registration Rights
Agreement, and may not be used for any other purpose or relied upon by any
person other than you. Except with our prior written consent, the opinions
herein expressed are not to be used, circulated, quoted or otherwise referred to
in connection with any transactions other than those contemplated by the
Registration Rights Agreement by or to any other person.
Very truly yours,
2
FOLEY & LARDNER
ATTORNEYS AT LAW
CHICAGO FIRSTAR CENTER SACRAMENTO
DENVER 777 EAST WISCONSIN AVENUE SAN DIEGO
JACKSONVILLE MILWAUKEE, WISCONSIN 53202-5367 SAN FRANCISCO
LOS ANGELES TELEPHONE (414) 271-2400 TALLAHASSEE
MADISON FACSIMILE (414) 297-4900 TAMPA
MILWAUKEE WASHINGTON, D.C.
ORLANDO WEST PALM BEACH
December 15, 1999
Alliant Energy Resources, Inc.
Alliant Energy Corporation
222 West Washington Avenue
Madison, Wisconsin 53703
Ladies and Gentlemen:
We have acted as counsel for Alliant Energy Resources, Inc., a
Wisconsin corporation (the "Company"), and Alliant Energy Corporation, a
Wisconsin corporation and the parent corporation of the Company (the "Parent
Guarantor"), in connection with the preparation of a Registration Statement on
Form S-4, including the Prospectus constituting a part thereof (the
"Registration Statement"), to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an offer to exchange (the "Exchange Offer") the Company's new 7 3/8%
Senior Notes due 2009 (the "New Senior Notes") for an equal principal amount of
the Company's outstanding 7 3/8% Senior Notes due 2009 (the "Existing Senior
Notes"). The New Senior Notes will be fully and unconditionally guaranteed (the
"New Senior Note Guarantees") by the Parent Guarantor.
The Existing Senior Notes were issued, and the New Senior Notes will
be issued, pursuant to an Indenture, dated as of November 4, 1999 (the
"Indenture"), among the Company, the Parent Guarantor and Firstar Bank, N.A., as
Trustee (the "Trustee"), as supplemented and amended by the First Supplemental
Indenture, dated as of November 4, 1999 (the "Supplemental Indenture"), among
the Company, the Parent Guarantor and the Trustee.
In connection with our opinion, we have examined: (a) the Registration
Statement, including the Prospectus; (b) the Indenture and the Supplemental
Indenture (included as Exhibits 4.1 and 4.2, respectively, to the Registration
Statement); (c) the form of the New Senior Notes and the New Senior Note
Guarantees (included as Exhibit 4.3 to the Registration Statement); and (d) such
other proceedings, documents and records as we have deemed necessary to enable
us to render this opinion.
In our examination of the above referenced documents, we have assumed
the genuineness of all signatures, the authenticity of all documents,
certificates and instruments
<PAGE>
Foley & Lardner
Alliant Energy Resources, Inc.
Alliant Energy Corporation
December 15, 1999
Page 2
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies.
Based upon the foregoing, assuming that the Indenture and the
Supplemental Indenture have been duly authorized, executed and delivered by, and
represent the valid and binding obligation of, the Trustee, and when the
Registration Statement, including any amendments thereto, shall have become
effective under the Securities Act and the Indenture and the Supplemental
Indenture shall have been duly qualified under the Trust Indenture Act of 1939,
as amended, and having regard for such legal considerations as we deem relevant,
we are of the opinion that:
1. The New Senior Notes, when duly executed and delivered by or on
behalf of the Company in the form contemplated by the Indenture and the
Supplemental Indenture upon the terms set forth in the Exchange Offer and
authenticated by the Trustee, will be legally issued and valid and binding
obligations of the Company enforceable in accordance with their terms; and
2. The New Senior Note Guarantees, when duly executed and delivered by
or on behalf of the Parent Guarantor in the form contemplated by the Indenture
and the Supplemental Indenture upon the terms set forth in the Exchange Offer,
will be legally issued and valid and binding obligations of the Parent Guarantor
enforceable in accordance with their terms;
except, in each case, as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other comparable
laws affecting the enforcement of creditors' rights generally or the application
of equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and subject, in each case, to the
qualification that certain provisions thereof may be unenforceable in whole or
in part under the laws of the State of Wisconsin, but the inclusion of such
provisions does not affect the validity of the New Senior Notes or the New Note
Senior Guarantees and each of them contain legally adequate provisions for the
realization of the principal legal rights and benefits afforded thereby.
We hereby consent to the reference to our firm under the caption
"Legal Matters" in the Prospectus which is filed as part of the Registration
Statement, and to the filing of this opinion as an exhibit to such Registration
Statement. In giving this consent, we do not admit that we are "experts" within
the meaning of Section 11 of the Securities Act or within the category of
persons whose consent is required by Section 7 of the Securities Act.
Very truly yours,
/s/ Foley & Lardner
FOLEY & LARDNER
<TABLE>
Alliant Energy Corporation
RATIO OF EARNINGS TO FIXED CHARGES
<CAPTION>
Nine Months Ended
Years Ended December 31, September 30,
1994 1995 1996 1997 1998 1998 1999
----------------------------------------------------------- -----------------------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Income from continuing operations
before preferred dividends $ 153,742 $ 165,839 $ 163,775 $ 151,271 $ 103,374 $ 76,505 $ 156,813
Federal & state income taxes 84,156 97,018 105,760 81,733 58,113 53,889 91,623
----------------------------------------------------------- -----------------------
Net income before income taxes 237,898 262,857 269,535 233,004 161,487 130,394 248,436
----------------------------------------------------------- -----------------------
Interest expense 100,873 111,422 113,321 122,563 129,363 95,045 100,347
Estimated interest component of rent expense 8,795 9,712 8,880 9,438 8,994 6,599 5,977
----------------------------------------------------------- -----------------------
Fixed charges as defined 109,668 121,134 122,201 132,001 138,357 101,644 106,324
----------------------------------------------------------- -----------------------
Earnings as defined $ 347,566 $ 383,991 $ 391,736 $ 365,005 $ 299,844 $ 232,038 $ 354,760
=========================================================== =======================
Ratio of Earnings to Fixed Charges (Unaudited) 3.17 3.17 3.21 2.77 2.17 2.28 3.34
=========================================================== =======================
</TABLE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of our
report dated January 29, 1999 (except with respect to the matters discussed in
Notes 5c and 17, as to which the date is October 29, 1999) on the consolidated
financial statements of Interstate Energy Corporation (name changed to Alliant
Energy Corporation as of May 20, 1999) included in Alliant Energy Corporation's
Annual Report on Form 10-K for the year ended December 31, 1998, as amended by
Alliant Energy Corporation's Form 10-K/A filed November 1, 1999 and to all
references to our firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
December 15, 1999
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Alan B. Arends
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Alan B. Arends
Alan B. Arends
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Rockne G. Flowers
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Rockne G. Flowers
Rockne G. Flowers
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Joyce L. Hanes
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Joyce L. Hanes
Joyce L. Hanes
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Lee Liu
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Lee Liu
Lee Liu
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Katherine C. Lyall
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Katherine C. Lyall
Katherine C. Lyall
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Arnold M. Nemirow
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Arnold M. Nemirow
Arnold M. Nemirow
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Milton M. Neshek
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Milton M. Neshek
Milton M. Neshek
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Jack R. Newman
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Jack R. Newman
Jack R. Newman
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Judith D. Pyle
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Judith D. Pyle
Judith D. Pyle
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Robert D. Ray
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Robert D. Ray
Robert D. Ray
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Robert W. Schlutz
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Robert W. Schlutz
Robert W. Schlutz
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Wayne H. Stoppelmoor
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Wayne H. Stoppelmoor
Wayne H. Stoppelmoor
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Anthony R. Weiler
hereby constitute and appoint Erroll B. Davis, Jr. and Edward M. Gleason, and
each of them individually, my true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for me and in my name, place and
stead, in any and all capacities, to sign my name as a director of Alliant
Energy Resources, Inc. (the "Company") and Alliant Energy Corporation (the
"Parent") to the Registration Statement on Form S-4, and any amendments
(including post-effective amendments) or supplements thereto, relating to an
offer to exchange substantially identical unsecured debt securities and related
guarantees that are registered under the Securities Act of 1933, as amended, for
up to $250,000,000 aggregate principal amount of unsecured debt securities to be
issued by the Company and unconditionally guaranteed by the Parent, after the
consummation of the private placement of such debt securities, and to file said
Registration Statement, and any amendment (including any post-effective
amendment) or supplement thereto, with the Securities and Exchange Commission in
connection with the registration of the unsecured debt securities and related
guarantees under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this Power
of Attorney.
WITNESS my hand this 20th day of October, 1999.
/s/ Anthony R. Weiler
Anthony R. Weiler
Securities and Exchange Commission
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
----------------------
Check if an Application to Determine Eligibility of a Trustee
Pursuant to Section 305(b)(2)______
----------------------
FIRSTAR BANK, N.A.
(Exact name of trustee as specified in its charter)
Wisconsin 39-0281225
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U. S. National Bank) Identification Number)
777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
Firstar Bank, N.A.
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Telephone (414) 765-5725
(Name, address, and telephone number of agent for service)
Alliant Energy Resources, Inc.
(Exact name of obligor as specified in its charter)
Wisconsin 39-1605561
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
200 First Street SE
Cedar Rapids, Iowa 52401
(Address of principal executive offices) (Zip Code)
7 3/8% Senior Notes due 2009
(Title of indenture securities)
Alliant Energy Corporation
(Exact name of obligor as specified in its charter)
Wisconsin 39-1380265
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
222 West Washington Avenue
Madison, Wisconsin 53703 53703
(Address of principal executive offices) (Zip Code)
Guarantees of 7 3/8% Senior Notes due 2009
(Title of indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The corporate trustee is authorized to exercise corporate trust
powers.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting
securities of the trustee:
As of December 13, 1999
Col. A Col. B
Title of class Amount outstanding
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, furnish the
following information:
(a) Title of the securities outstanding under each such other
indenture.
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of Section
310(b)(1) of the Act arises as a result of the trusteeship under any
such other indenture, including a statement as to how the indenture
securities will rank as compared with the securities issued under such
other indenture.
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
<PAGE>
Item 5. Interlocking Directorates and Similar Relationships with the
Obligor or Underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the
nature of each such connection.
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
Item 6. Voting Securities of the Trustee Owned by the Obligor or its
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner,
and executive officer of the obligor:
As of December 13, 1999
Col. A Col. B Col. C Col. D
Name of owner Title of class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and
each director, partner, and executive officer of each such
underwriter:
As of December 13, 1999
Col. A Col. B Col. C Col. D
Name of owner Title of class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to form T-1, no response is required to this
item as the obligor is not presently in default.
<PAGE>
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations in
default by the trustee:
As of December 13, 1999
Col. A Col. B Col. C Col. D
Title of class Whether Amount owned Percent of
the securities beneficially or held class represented
are voting as collateral security by amount given
or nonvoting for obligations in Col. C
securities in default
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the
obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held by
the trustee:
As of December 13, 1999
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the
knowledge of the trustee (1) owns 10 percent or more of the voting
securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following information as to
the voting securities of such person:
As of December 13, 1999
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
<PAGE>
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the
knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to
each class of securities of such person any of which are so owned or
held by the trustee:
As of December 13, 1999
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
As of December 13, 1999
Col. A Col. B Col. C
Nature of indebtedness Amount outstanding Date due
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or participation in
any other securities, of the obligor are outstanding, or is trustee
for more than one outstanding series of securities under the
indenture, state whether there has been a default under any such
indenture or series, identify the indenture or series affected, and
explain the nature of any such default.
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
<PAGE>
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Per General Instruction B to Form T-1, no response is required to this
item as the obligor is not presently in default.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act. Not applicable
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the Articles of Association of Firstar Bank, N.A. as now
in effect (filed herewith).
2. Certificate of authority of the Trustee to commence business
(contained in Exhibit 1).
3. Authorization of the Trustee to exercise trust (filed herewith).
4. A copy of the existing By-Laws of Firstar Bank, N.A. (filed
herewith).
6. The consent of the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939 (filed herewith).
7. A copy of the latest report of condition of the Trustee (formerly
known as Firstar Bank Milwaukee, N.A.) published pursuant to law or
the requirement of its supervising or examining authority (filed
herewith).
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Firstar Bank, N.A., a corporation organized and existing under the laws
of the United States, has duly caused this statement of eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the City of
Milwaukee, and State of Wisconsin, on the 13th day of December, 1999.
FIRSTAR BANK, N.A.
(Trustee)
By: /s/Yvonne Siira
---------------
Yvonne Siira, Assistant Vice President
--------------------------------------
(Name and title)
By: /s/Pamela Warner
-------------------
Pamela Warner, Assistant Secretary
----------------------------------
(Name and title)
<PAGE>
Exhibit 1
FIRSTAR BANK, NATIONAL ASSOCIATION
----------------------------------
CHARTER NO. 24
--------------
ARTICLES OF ASSOCIATION
-----------------------
FIRST: The title of this Association shall be "Firstar Bank, National
Association".
SECOND: The main office of the Association shall be in the city of Cincinnati,
County of Hamilton, State of Ohio. The general business of the Association shall
be conducted at its main office and its branches.
THIRD: The Board of Directors of this Association shall consist of not less than
five (5) nor more than twenty-five (25) shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by re
solution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
FOURTH: The annual meeting of the shareholders for the election of Directors and
the transaction of whatever other business may be brought before said meeting
shall be held at the main office or such other place as the Board of Directors
may designate, on the day of each year specified thereof by the Bylaws, but if
no election is held on that day, it may be held on any subsequent day according
to the provisions of law; and all elections shall be held according to the
provisions of law; and all elections shall be held according to such lawful
regulations as may be prescribed by the Board of Directors.
FIFTH: The authorized amount of capital stock of this Association shall be
3,640,000 shares of common stock of the par value of five dollars ($5.00) each,
but said capital stock may be increased or decreased from time to time, in
accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any pre-emptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
<PAGE>
The Association, at any time and from time to time, may authorize and issue debt
obligations, Whether or not subordinated, without the approval of the
shareholders.
SIXTH: The Board of Directors shall appoint one of its members President of this
Association, who shall be Chairman of the Board, unless the Board appoints
another Director to be the Chairman. The Board of Directors shall have the power
to appoint one or more Vice Presidents; and to appoint a Cashier and such other
officers and employees as may be required to transact the business of this
Association. The Board of Directors shall have the power to define the duties of
the officers and employees of the Association; to fix the salaries to be paid to
them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of the
Association shall be made; to manage and administer the business and affairs of
the Association; to make all Bylaws that it may be lawful for them to make and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
SEVENTH: The Board of Directors, without need for approval of shareholders,
shall have the power to change the location of the main office of this
Association to any other place within the limits of Cincinnati, Ohio, without
the approval of the shareholders, and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location, without the approval of the shareholders, but subject to the approval
of the Comptroller of the Currency.
EIGHTH: The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH: The Board of Directors of this Association, the Chairman of the Board,
the President, or any three or more shareholders owning, in the aggregate, not
less than twenty-five percent of the stock of this Association, may call a
special meeting of shareholders at any time. Unless otherwise provided by the
laws of the United States, a notice of the time, place, and purpose of every
annual and special meeting of the shareholders shall be given by first-class
mail, postage prepaid, mailed at least ten days prior to the date of such
meeting to each shareholder of record at his address as shown upon the books of
this Association.
TENTH: Any person, his heirs, executors, or administrators, may be indemnified
or reimbursed by the Association for reasonable expenses actually incurred in
connection with any action, suit, or proceeding, civil or criminal, to which he
or they shall be made a party by reason of his being or having been a director,
officer, or employee of the Association or of any firm, corporation, or
organization which he served in any such capacity at the request of the
Association. Provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit, or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct or criminal acts in the performance of his duties
to the Association. And, provided further, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction, or the holders of record
of a majority of the outstanding shares of the Association, or the Board of
<PAGE>
Directors, acting by vote of Directors not parties to the same or substantially
the same action, suit or proceeding, constituting a majority of the whole number
of Directors. And, provided further, that no director, officer or employee shall
be so indemnified or reimbursed for expenses, penalties or other payments
incurred in an administrative proceeding or action instituted by an appropriate
bank regulatory agency where said proceeding or action results in a final order
assessing civil money penalties or requiring affirmative action by an individual
or individuals in the form of payments to this Association. The foregoing right
of indemnification shall not be exclusive of other rights to which such person,
his heirs, executors, or administrators, may be entitled as a matter of law. The
Association may, upon the affirmative vote of a majority of its Board of
Directors, purchase insurance for the purpose of indemnifying its directors,
officers and other employees to the extent that such indemnification is allowed
in the preceding paragraph. Such insurance may, but need not, be for the benefit
of all directors, officers, or employees.
ELEVENTH: These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law and in that case by the vote of the holders
of such greater amount.
r/legal/articles
<PAGE>
Exhibit 3
Comptroller of the Currency
Administrator of National Banks
Certificate of Fiduciary Powers
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody
and control of all records pertaining to the chartering of all National Banking
Associations.
2. "Firstar Bank, National Association," Cincinnati, Ohio, (Charter No.
24), was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1062, 76 Stat. 668, 12 U.S.C. 92a, and
that the authority so granted remains in full force and effect on the date of
this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of office to
(seal) be affixed to these presents at the Treasury
Department in the City of Washington and District
Of Columbia, this 19th day of October, 1999.
/s/ John D. Hawke, Jr.
-----------------------
Comptroller of the Currency
<PAGE>
Exhibit 4
FIRSTAR BANK, N. A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING
- -------------------------
The annual meeting of shareholders shall be held in the main banking house of
the Association at 11:00 a.m. on the second Tuesday in March of each year.
Notice of such meeting shall be mailed to shareholders not less than ten (10)
nor more than sixty (60) days prior to the meeting date.
SECTION 2. SPECIAL MEETINGS
- ---------------------------
Special meetings of shareholders may be called and held at such times and upon
such notice as is specified in the Articles of Association.
SECTION 3. QUORUM
- -----------------
A majority of the outstanding capital stock represented in person or by proxy
shall constitute a quorum of any meeting of the shareholders, unless otherwise
provided by law, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held as adjourned without further notice.
SECTION 4. INSPECTORS
- ---------------------
The Board of Directors may, and in the event of its failure so to do, the
Chairman of the Board shall appoint Inspectors of Election who shall determine
the presence of quorum, the validity of proxies, and the results of all
elections and all other matters voted upon by shareholders at all annual and
special meetings of shareholders.
SECTION 5. VOTING
- -----------------
In deciding on questions at meetings of shareholders, except in the election of
directors, each shareholder shall be entitled to one vote for each share of
stock held. A majority of votes cast shall decide each matter submitted to the
shareholders, except where by law a larger vote is required. In all elections of
directors, each shareholder shall have the right to vote the number of shares
owned by him for as many persons as there are directors to be elected, or to
cumulate such shares and give one candidate as many votes as the number of
directors multiplied by the number of his shares equal, or to distribute them on
the same principle among as many candidates as he shall think fit.
<PAGE>
SECTION 6. WAIVER AND CONSENT
- -----------------------------
The shareholders may act without notice and/or a meeting by a unanimous written
consent by all shareholders.
ARTICLE II
SECTION 1. TERM OF OFFICE
- -------------------------
The directors of this Association shall hold office for one year and until their
successors are duly elected and qualified.
SECTION 2. REGULAR MEETINGS
- ---------------------------
The organizational meeting of the Board of Directors shall be held on the same
date as soon as practical following the annual meeting of shareholders at the
main banking house. Other regular meetings of the Board of Directors shall be
held without notice at 11:00 a.m. on the second Tuesday of June, September and
December, at the main banking house, or, provided notice is given by telegram,
letter, telephone or in person to every Director, at such time and place as may
be designated in the notice of the meeting. When any regular meeting of the
Board falls on a holiday, the meeting shall be held on the next banking business
day, unless the Board shall designate some other day.
SECTION 3. SPECIAL MEETINGS
- ---------------------------
Special meetings of the Board of Directors may be called by the Chairman of the
Board of the Association, or at the request of three or more Directors. Notice
of the time, place and purposes of such meetings shall be given by telegram,
letter, telephone or in person to every Director.
SECTION 4. QUORUM
- -----------------
A majority of the entire membership of the Board shall constitute a quorum of
any meeting of the Board.
SECTION 5. NECESSARY VOTE
- -------------------------
A majority of those Directors present and voting at any meeting of the Board of
Directors shall decide each matter considered, except where otherwise required
by law or the Articles or By-Laws of this Association.
SECTION 6. COMPENSATION
- -------------------------
Directors, excluding full-time employees of the Bank, shall receive such
reasonable compensation as may be fixed from time to time by the Board of
Directors.
SECTION 7. ELECTION-AGE LIMITATION
- ----------------------------------
No person shall be elected or re-elected a Director after reaching his
seventieth (70th) birthday, provided that any person who is a Director on
December 10, 1985, may continue to be re-elected a Director until he reaches his
seventy-fifth (75th) birthday.
SECTION 8. RETIREMENT-AGE LIMITATION
- ------------------------------------
Every Director of the Bank shall retire no later than the first month next
following his seventieth (70th) birthday, except for any person who was a
Director on December 10, 1985, who shall retire not later than the first of the
next month following his seventy-fifth (75th) birthday.
SECTION 9. DIRECTORS EMERITUS
- -----------------------------
<PAGE>
The Board shall have the right from time to time to choose as Directors Emeritus
persons who have had prior service as members of the Board and who may receive
such compensation as shall be fixed from time to time by the Board of Directors.
ARTICLE III
OFFICERS
SECTION 1. WHO SHALL CONSTITUTE
- -------------------------------
The officers of the Association shall be a Chairman of the Board, a President, a
Secretary, and other officers such as Chairman of the Executive Committee, Vice
Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, Assistant Secretaries, Trust Officers, Trust Investment Officers,
Trust Real Estate Officers, Assistant Trust Officers, a Controller, Assistant
Controller, an Auditor and Assistant Auditors, as the Board may appoint from
time to time. Any person may hold two offices. The Chairman of the Board, all
Vice Chairmen of the Board and the President shall at all times be members of
the Board of Directors.
SECTION 2. TERM OF OFFICE
- -------------------------
All officers shall be elected for and shall hold office for one year and until
their successors are elected and qualified, subject to the right in the Board of
Directors by a majority vote of the entire membership to discharge any officer
at any time.
SECTION 3. CHAIRMAN OF THE BOARD
- --------------------------------
The Chairman of the Board shall have general executive powers and duties and
shall perform such other duties as may be assigned from time to time by the
Board of Directors. In addition, unless the Board of Directors shall have
designated the President to be the Chief Executive Officer, the Chairman of the
Board shall be the Chief Executive Officer and shall have all the powers and
duties of the Chief Executive Officer. He shall, when present, preside at all
meetings of shareholders and directors and shall be ex officio a member of all
committees of the Board. He shall name all members of the committees of the
Board, subject to the confirmation thereof by the Board.
If he is Chief Executive Officer, in the event there is a vacancy in the
position of President or in the event of the absence or incapacity of the
President, the Chairman may appoint, or in the event of his failure to do so,
the Board of Directors or the Executive Committee thereof may designate, any
Vice Chairman of the Board, any Executive Vice President or any Senior Vice
President of the Association temporarily to exercise the powers and perform the
duties of the Chairman as Chief Executive Officer when the Chairman is absent or
incapacitated.
If the President has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the President
or in the event of the absence or incapacity of the President, the Chairman
shall be the Chief Executive Officer of the Association and shall have all the
powers and perform all the duties of the President, including the powers to name
temporarily a Chief Executive Officer to serve in the absence of the Chairman.
SECTION 4. PRESIDENT
- --------------------
The President shall have general executive powers and duties and shall perform
such other duties as may be assigned from time to time by the Board of
Directors. In addition, if designated by the Board of Directors, the President
shall be the Chief Executive Officer and shall have all the powers and duties of
the Chief Executive Officer, including the same power to name temporarily a
Chief Executive Officer to serve in the absence of the President if there is a
vacancy in the position of the Chairman or in the event of the absence or
incapacity of the Chairman.
<PAGE>
If the Chairman has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the Chairman
of the Board or in the event of the absence or incapacity of the Chairman of the
Board, the President shall be the Chief Executive Officer of the Association and
shall have all the powers and perform all the duties of the Chairman of the
Board, including the same power to name temporarily a Chief Executive Officer to
serve in the absence of the President.
SECTION 5. CHAIRMAN OF THE EXECUTIVE COMMITTEE
- ----------------------------------------------
The Board of Directors shall have the power to elect a Chairman of the Executive
Committee. Any such Chairman of the Executive Committee shall participate in the
formation of the policies of the Association and shall have such other duties as
may be assigned to him from time to time by the President or by the Board of
Directors.
SECTION 6. VICE CHAIRMEN OF THE BOARD
- -------------------------------------
The Board of Directors shall have the power to elect one or more Vice Chairmen
of the Board of Directors. Any such Vice Chairmen of the Board shall participate
in the formation of the policies of the Association and shall have such other
duties as may be assigned to him from time to time by the Chairman of the Board
or by the Board of Directors.
SECTION 7. OTHER OFFICERS
- -------------------------
The Secretary and all other officers appointed by the Board of Directors shall
have such duties as defined by law and as may from time to time be assigned to
them by the Chief Executive Officer or the Board of Directors.
SECTION 8. RETIREMENT
- ---------------------
Every officer of the Association shall retire not later than the first of the
month next following his 65th birthday. The Board of Directors may, in its
discretion, set the retirement date and terms of retirement of an officer at a
date later than provided above.
ARTICLE IV
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE
- ------------------------------
There shall be a standing committee of Directors in this Association to be known
as the Executive Committee. This committee shall meet at 11:00 a.m. on the-first
and last two Tuesdays of each month. It shall have all of the powers of the
Board of Directors between meetings of the Board, except as the Board only by
law is authorized to perform or exercise. All actions of the Executive Committee
shall be reported to the Board of Directors.
In the event that any member of the Executive Committee is unable to attend a
meeting of that committee, the Chairman of the Board or the President may, at
his discretion, appoint another Director to attend said meeting of the Executive
Committee and for that meeting to serve as a member of the Executive Committee
with full power to act in place of the absent regular member of the Committee.
SECTION 2. COMPENSATION COMMITTEE
- ---------------------------------
There shall be a standing committee of Directors of this Association to be known
as the Compensation Committee who shall review the compensation of all Executive
Officers and those officers who participate in the Profit Sharing Pool as well
as fees for directors of the Association. They will recommend specific
compensation arrangements to the Board of Directors for their confirmation.
SECTION 3. COMMITTEE ON AUDIT
- -----------------------------
<PAGE>
There shall be a standing committee of Directors of this Association to be known
as the Committee on Audit, none of whose members shall be active officers of the
Association. This Committee shall make or cause to be made a suitable
examination of the affairs of the Association and the Trust Department at least
once during each period of twelve months. The results of such examination shall
be reported in writing to the Board at the next regular meeting thereafter
stating whether the Association and/or Trust Department is in a sound solvent
condition, whether adequate internal audit controls and procedures are being
maintained and make such recommendations as it deems advisable.
SECTION 4. TRUST COMMITTEE
- --------------------------
There shall be a standing committee of Directors of this Association to be known
as the Trust Committee. The Trust Committee shall determine policies of the
Department and review actions of the Trust Investment Committee. All actions of
the Trust Committee shall be reported to the Board of Directors.
SECTION 5. TRUST POLICY COMMITTEE
- ---------------------------------
There shall be a standing committee of this Association to be known as the Trust
Policy Committee composed of officers of the Association. The Trust Policy
Committee or such officers as may be duly designated by the Trust Policy
Committee, shall pass upon the acceptance of all trusts, the closing out or
relinquishment of all trusts and the making, retention, or disposition of all
investments of trust funds in conformity with policies established by the Trust
Committee. Actions of the Trust Policy Committee shall be reported to the Trust
Committee.
SECTION 6. PENSION COMMITTEE
- ----------------------------
There shall be a standing committee of directors or officers of this Association
to be known as the Pension Committee, who shall have the powers and duties as
set forth in the Association's Employees' Pension Plan. A report of the
condition of the pension fund shall be submitted annually to the Board of
Directors.
SECTION 7. OTHER COMMITTEES
- ---------------------------
The Chairman may appoint, from time to time, other committees for such purposes
and with such powers as he or the Board may direct.
ARTICLE V
SEAL
SECTION 1. IMPRESSION
- ---------------------
The following is an impression of the seal of this Association.
G:CORPSEC:BANK:BYLAWS
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
Firstar Bank, N.A., as Trustee herein named, hereby consents that reports of
examination of said Trustee by Federal and State authorities may be furnished by
such authorities to the Securities and Exchange Commission upon request
therefor.
FIRSTAR BANK, N.A.
(Trustee)
By: /s/ Yvonne Siira
----------------
Yvonne Siira, Assistant Vice President
--------------------------------------
(Name and title)
By: /s/ Pamela Warner
-----------------
Pamela Warner, Assistant Secretary
----------------------------------
(Name and title)
Dated: December 13, 1999
<PAGE>
EXHIBIT 7
Legal Title of Bank: Firstar Bank Milwaukee, N.A. Call Date: 12/31/98 ST-BK:
55-9180 FFIEC 031
Address: 777 East Wisconsin Avenue Page RC-1
City, State Zip: Milwaukee, Wisconsin 53202
FDIC Certificate No.: | 0 | 5 | 3 | 0 | 8 |
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
<TABLE>
Schedule RC--Balance Sheet
<CAPTION>
| C400 |
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): . | / / / / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin (1)................. 0081 940,843 1.a.
b. Interest-bearing balances (2).......................................... 0071 4,624 1.b.
2. Securities .............................................................. | / / / / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, Column A):............ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, Column D)........... 1773 911,883 2.b.
3. Federal funds sold and securities purchased under agreements to resell ... 1350 936,258 3.
4. Loans and lease financing receivables:..................................... | / / / / / / / / / / / / / / |
a. Loans and leases, net of unearned income .............................. | / / / / / / / / / / / / / / |
(from Schedule RC-C)......................... | RCFD 2122 | 5,832,760 | / / / / / / / / / / / / / / | 4.a.
b. LESS: Allowance for loan and lease losses. | RCFD 3123 | 84,275 | / / / / / / / / / / / / / / | 4.b.
c. LESS: Allocated transfer risk reserve.. | RCFD 3128 | 0 | / / / / / / / / / / / / / / | 4.c.
d. Loans and leases, net of unearned income, allowance, and reserve....... | / / / / / / / / / / / / / / |
(Item 4.a. minus 4.b. and 4.c.)........................................ 2125 5,748,485 4.d.
5. Trading assets (from Schedule RC-D)........................................ 3545 13,839 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 145,301 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 88 7.
8. Investments in unconsolidated subsidiaries and associated companies........ | / / / / / / / / / / / / / / |
(from Schedule RC-M)....................................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding............... 2155 9,891 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 110,634 10.
11. Other assets (from Schedule RC-F).......................................... 2160 147,531 11.
12. Total assets (sum of items 1 through 11)................................... 2170 8,969,377 12.
- -----------
(1) Includes cash items in process of collection and unposted debits
(2) Includes time certificates of deposit not held for trading
</TABLE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C> <C>
13. Deposits: .............................................................. | / / / / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from............. | / / / / / / / / / / / / / / |
Schedule RC-E, part 1)................................................. RCON 2200 5,325,682 13.a.
(1) Noninterest-bearing (1)...................| RCON 6631 | 1,458,862 | / / / / / / / / / / / / / / | 13.a.(1)
(2) Interest-bearing..........................| RCON 6636 | 3,866,820 | / / / / / / / / / / / / / / | 13.a.(2)
b. In foreign offices, Edge and Agreement ................................ | / / / / / / / / / / / / / / |
subsidiaries, and IBFs (from Schedule RC-E, part II)................... RCFN 2200 404,324 13.b.
(1) Noninterest-bearing.......................| RCFN 6631 | 582 | / / / / / / / / / / / / / / | 13.b.(1)
(2) Interest-bearing..........................| RCFN 6636 | 403,742 | / / / / / / / / / / / / / / | 13.b.(2)
</TABLE>
<PAGE>
<TABLE>
Schedule RC--Balance Sheet
<CAPTION>
| C400 |
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
LIABILITIES (continued)
<S> <C> <C> <C>
14. Federal funds purchased and securities sold under agreements to repurchase. RCON 2800 1,834,422 14.
15. a. Demand notes issued to the U.S. Treasury............................... RCON 2840 99,271 15.a.
b. Trading liabilities (From Schedule RC-D)............................... RCFD 3548 12,368 15.b.
16. Other borrowed money (including mortgage indebtedness and obligations under | / / / / / / / / / / / / / / |
capitalized leases) ....................................................... | / / / / / / / / / / / / / / |
a. With a remaining maturity of one year or less.......................... RCFD 2332 25,937 16.a.
b. With a remaining maturity of more than one year through three years.... RCFD A547 0 16.b.
c. With a remaining maturity of more than three years..................... RCFD A547 20,000 16.c.
17. Not applicable. | / / / / / / / / / / / / / / |
18. Bank's liability on acceptances executed and outstanding................... RCFD 2920 9,891 18.
19. Subordinated notes and debentures (2)...................................... RCFD 3200 413,191 19.
20. Other liabilities (from Schedule RC-G)..................................... RCFD 2930 190,228 20.
21. Total liabilities (sum of items 13 through 20)............................. RCFD 2948 8,335,314 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ............................. RCFD 3838 0 23.
24. Common stock .............................................................. RCFD 3230 76,600 24.
25. Surplus (exclude all surplus related to preferred stock)................... RCFD 3839 139,073 25.
26. a. Undivided profits and capital reserves.................................. RCFD 3632 400,214 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities.. RCFD 8434 18,176 26.b.
27. Cumulative foreign currency translation adjustments........................ RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27).......................... RCFD 3210 634,063 28.
29. Total liabilitiesand equity capital (sum of items 21 and 28)............... RCFD 3300 8,969,377 29.
MEMORANDUM
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the Number
bank by independent external auditors as of any date during 1997............. RCFD 6724 N/A M.1.
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C>
1 = Independent audit of the bank conducted in 5 = Review of the bank's financial statements
accordance with generally accepted auditing by external auditors.
standards by a certified public accounting
firm which submits a report on the bank.
2 = Independent audit of the bank's parent 6 = Compilation of the bank's financial
holding company conducted in accordance statements by external auditors.
with generally accepted auditing standards
by a certified public accounting firm which
submits a report on the consolidated
holding company (but not on the bank
separately).
3 = Directors' examination of the bank 7 = Other audit procedures (excluding tax
conducted in accordance with generally preparation work).
accepted auditing standards by a certified
public accounting firm (may be required by
state chartering authority).
4 = Directors' examination of the bank 8 = No external audit work.
performed by other external auditors (may
be required by state chartering authority).
- -----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
</TABLE>
LETTER OF TRANSMITTAL
ALLIANT ENERGY RESOURCES, INC.
Offer to Exchange
Registered 7 3/8% Senior Notes due 2009
For Any and All Outstanding
Unregistered 7 3/8% Senior Notes due 2009
Pursuant to the Prospectus dated ____________, 1999
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON
____________, 2000, UNLESS EXTENDED (THE "EXPIRATION DATE").
- --------------------------------------------------------------------------------
The Exchange Agent for the Exchange Offer is Firstar Bank, N.A.
By Facsimile Transmission By Registered or Certified Mail,
(For Eligible Institutions Only): Hand or Overnight Courier:
(414) 276-4226 Firstar Bank, N.A.
1555 North RiverCenter Drive
Confirm by Telephone: Suite 301
(414) 905-5008 Milwaukee, Wisconsin 53212
Attention: Ms. Pamela Warner
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET
FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY BEFORE COMPLETING THIS
LETTER OF TRANSMITTAL.
The undersigned acknowledges that he or she has received and reviewed the
Prospectus, dated ____________, 1999 (the "Prospectus"), of Alliant Energy
Resources, Inc., a Wisconsin corporation (the "Company"), and Alliant Energy
Corporation, a Wisconsin corporation, and this Letter of Transmittal (the
"Letter"), which together constitute the Company's offer (the "Exchange Offer")
to exchange its 7 3/8% Senior Notes due 2009 (the "New Senior Notes"), which
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like principal amount of the Company's issued and
outstanding unregistered 7 3/8% Senior Notes due 2009 (the "Existing Senior
Notes").
For each Existing Senior Note accepted for exchange, the Holder of such
Existing Senior Note will receive a New Senior Note having a principal amount
equal to that of the surrendered Existing Senior Note. The New Senior Notes will
bear interest from the most recent date to which interest has been paid on the
Existing Senior Notes or, if no interest has been paid on the Existing Senior
Notes, from November 9, 1999. Accordingly, registered Holders of New Senior
Notes on the relevant record date for the first interest payment date following
the consummation of the Exchange Offer will receive interest accrued from the
most recent date to which interest has been paid or, if no interest has been
<PAGE>
paid, from November 9, 1999. However, if that record date occurs prior to
completion of the Exchange Offer, then the interest payable on the first
interest payment date following the completion of the Exchange Offer will be
paid to the registered Holders of the Existing Senior Notes on that record date.
Existing Senior Notes accepted for exchange will cease to accrue interest from
and after the date of consummation of the Exchange Offer and will be cancelled.
Holders of Existing Senior Notes whose Existing Senior Notes are accepted for
exchange will not receive any payment in respect of accrued interest on such
Existing Senior Notes otherwise payable on any interest payment date the record
date for which occurs on or after consummation of the Exchange Offer.
This Letter is to be completed by a Holder of Existing Senior Notes either
if (1) certificates are to be forwarded herewith or (2) tenders are to be made
by book-entry transfer to the account maintained by the Exchange Agent at The
Depository Trust Company ("DTC" or the "Book-Entry Transfer Facility") pursuant
to the procedures set forth in "The Exchange Offer - Book-Entry Transfer"
section of the Prospectus. Holders of Existing Senior Notes whose certificates
are not immediately available, or who are unable to deliver their certificates
or confirmation of the book-entry tender of their Existing Senior Notes into the
Exchange Agent's account at the Book-Entry Transfer Facility (a "Book-Entry
Confirmation") and all other documents required by this Letter to the Exchange
Agent on or prior to the Expiration Date, must tender their Existing Senior
Notes according to the guaranteed delivery procedures set forth in "The Exchange
Offer - Guaranteed Delivery Procedures" section of the Prospectus. See
Instruction 1. Delivery of documents to the Book-Entry Transfer Facility does
not constitute delivery to the Exchange Agent.
Tenders by book-entry transfer also may be made by delivering an Agent's
Message in lieu of this Letter. The term "Agent's Message" means a message,
transmitted by the Book-Entry Transfer Facility to and received by the Exchange
Agent and forming a part of a Book-Entry Confirmation, which states that the
Book-Entry Transfer Facility has received an express acknowledgment from the
tendering participant, which acknowledgment states that such participant has
received and agrees to be bound by this Letter and the Company may enforce this
Letter against such participant.
As used in this Letter, the term "Holder" with respect to the Exchange
Offer means any person in whose name Existing Senior Notes are registered on the
books of the Company or, with respect to interests in global notes held by DTC,
any DTC participant listed in an official DTC proxy. The undersigned has
completed the appropriate boxes below and signed this Letter to indicate the
action the undersigned desires to take with respect to the Exchange Offer.
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of New
Senior Notes. If the undersigned is a broker-dealer that will receive New Senior
Notes, the undersigned represents that the Existing Senior Notes to be exchanged
for the New Senior Notes were acquired as a result of market-making activities
or other trading activities, and the undersigned acknowledges that it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such New Senior Notes; however, by so
acknowledging and by delivering such a prospectus the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
-2-
<PAGE>
List below the Existing Senior Notes to which this Letter relates. If the
space provided below is inadequate, the certificate numbers and principal amount
of Existing Senior Notes should be listed on a separate signed schedule affixed
hereto.
- --------------------------------------------------------------------------------
DESCRIPTION OF EXISTING SENIOR NOTES TENDERED
- --------------------------------------------------------------------------------
Aggregate
Name(s) and Address(es) of Principal Amount
Registered Holder(s) Certificate of Existing Senior Principal Amount
(Please fill in, if blank) Number(s)* Notes Tendered**
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total
- --------------------------------------------------------------------------------
* Do not complete if Existing Senior Notes are being tendered by book-entry
transfer.
** A holder will be deemed to have tendered ALL Existing Senior Notes unless a
lesser amount is specified in this column. See Instruction 2. Existing
Senior Notes tendered hereby must be in denominations of principal amount
of $1,000 and any integral multiples thereof. See Instruction 1.
|_| CHECK HERE IF TENDERED EXISTING SENIOR NOTES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution______________________________________________
Account Number______________ Transaction Code Number___________________
|_| CHECK HERE IF TENDERED EXISTING SENIOR NOTES ARE BEING DELIVERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT
AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s)____________________________________________
Window Ticket Number (if any)______________________________________________
Date of Execution of Notice of Guaranteed Delivery________________________
Name of Institution Which Guaranteed Delivery______________________________
If Delivered by Book-Entry Transfer, Complete the Following:
Account Number______________ Transaction Code Number___________________
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:______________________________________________________________________
Address:___________________________________________________________________
-3-
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of
Existing Senior Notes indicated on page 3 of this Letter. Subject to, and
effective upon, the acceptance for exchange of the Existing Senior Notes
tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon
the order of, the Company all right, title and interest in and to such Existing
Senior Notes as are being tendered hereby.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent as the undersigned's true and lawful agent and attorney-in-fact with
respect to such tendered Existing Senior Notes, with full power of substitution,
among other things, to cause the Existing Senior Notes to be assigned,
transferred and exchanged. The undersigned hereby represents and warrants that
the undersigned has full power and authority to tender, sell, assign and
transfer the Existing Senior Notes, and to acquire the new Senior Notes issuable
upon the exchange of such tendered Existing Senior Notes, and that, when the
same are accepted for exchange, the Company will acquire good and unencumbered
title thereto, free and clear of all liens, restrictions, charges and
encumbrances and not subject to any adverse claim when the same are accepted by
the Company. The undersigned hereby further represents that: (1) any New Senior
Notes acquired in exchange for Existing Senior Notes tendered hereby will have
been acquired in the ordinary course of business of the person receiving such
New Senior Notes, whether or not such person is the undersigned, (2) neither the
Holder of such Existing Senior Notes nor any such other person has an
arrangement or understanding with any person to participate in the distribution
of such New Senior Notes, and (3) neither the Holder of such Existing Senior
Notes or any such other person is an "affiliate," as defined in Rule 405 under
the Securities Act of the Company.
The undersigned acknowledges that this Exchange Offer is being made in
reliance on interpretations by the staff of the Securities and Exchange
Commission (the "SEC"), as set forth in no-action letters issued to third
parties, that the New Senior Notes issued pursuant to the Exchange Offer in
exchange for the Existing Senior Notes may be offered for resale, resold and
otherwise transferred by Holders thereof (other than any such Holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such Holders are not
broker-dealers, such New Senior Notes are acquired in the ordinary course of
such Holders' business and such Holders have no arrangement or understanding
with any person to participate in the distribution of such New Senior Notes.
However, the SEC has not considered the Exchange Offer in the context of a
no-action letter and there can be no assurance that the staff of the SEC would
make a similar determination with respect to the Exchange Offer as in other
circumstances. If any Holder is an affiliate of the Company, or has any
arrangement or understanding with respect to the distribution of the New Senior
Notes to be acquired pursuant to the Exchange Offer, such Holder (i) cannot rely
on the applicable interpretations of the staff of the SEC, (ii) is not entitled
and will not be permitted to tender Existing Senior Notes in the Exchange Offer
and (iii) must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any resale transaction. If the
undersigned is a broker-dealer that will receive New Senior Notes for its own
account in exchange for Existing Senior Notes, it represents that the Existing
Senior Notes to be exchanged for the New Senior Notes were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of such New Senior Notes;
-4-
<PAGE>
however, by so acknowledging and by delivering a prospectus meeting the
requirements of the Securities Act, the undersigned will not be deemed to admit
that it is an "underwriter" within the meaning of the Securities Act.
The undersigned will, upon request, execute and deliver any additional
documents reasonably deemed by the Company to be necessary or desirable to
complete the sale, assignment and transfer of the Existing Senior Notes tendered
hereby. All authority conferred or agreed to be conferred in this Letter and
every obligation of the undersigned hereunder shall be binding upon the
successors, assigns, heirs, executors, administrators, trustees in bankruptcy
and legal representatives of the undersigned and shall not be affected by, and
shall survive, the death or incapacity of the undersigned. This tender may be
withdrawn only in accordance with the procedures set forth in "The Exchange
Offer - Withdrawal Rights" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please deliver the New Senior Notes (and, if applicable,
substitute certificates representing Existing Senior Notes for any Existing
Senior Notes not exchanged) in the name of the undersigned or, in the case of a
book-entry delivery of Existing Senior Notes, please credit the account
indicated above maintained at the Book-Entry Transfer Facility. Similarly,
unless otherwise indicated under the box entitled "Special Delivery
Instructions" below, please send the New Senior Notes (and, if applicable,
substitute certificates representing Existing Senior Notes for any Existing
Senior Notes not exchanged) to the undersigned at the address shown above in the
box entitled "Description of Existing Senior Notes."
The undersigned, by completing the box entitled "Description of Existing
Senior Notes" on page 3 of this Letter and signing this Letter, will be deemed
to have tendered the Existing Senior Notes as set forth in such box on page 3 of
this Letter.
-5-
<PAGE>
- -------------------------------------- --------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3 and 4) (See Instructions 3 and 4)
To be completed ONLY if Existing To be completed ONLY if Existing
Senior Notes not exchanged and/or New Senior Notes not exchanged and/or new
Senior Notes are to be issued in the Senior Notes are to be sent to someone
name of someone other than the other than the undersigned, or to the
undersigned, or if Existing Senior undersigned at an address other than
Notes delivered by book-entry transfer shown in the box entitled "Description
which are not accepted for exchange of Existing Senior Notes Tendered" on
are to be returned by credit to an this Letter.
account maintained at the Book-Entry
Transfer Facility other than the
account indicated above. Mail: |_| New Senior Notes
|_| Existing Senior Notes
Issue: |_| New Senior Notes
|_| Existing Senior Notes Name(s) _____________________________
(Please Type or Print)
Name(s) _____________________________ _____________________________
(Please Type or Print)
_____________________________ Address _____________________________
_____________________________
Address _____________________________
_____________________________
Taxpayer Identification or Social
Security No.
______________________________________
|_| Credit unexchanged Existing Senior
Notes delivered by book-entry
transfer to the Book-Entry
Transfer Facility account set
forth below.
______________________________________
(Book-Entry Transfer Facility Account
Number, if applicable)
- -------------------------------------- --------------------------------------
-6-
<PAGE>
- --------------------------------------------------------------------------------
ALL TENDERING HOLDERS PLEASE SIGN HERE
(Complete Substitute Form W-9 on next page)
x _________________________________________ ________________, 2000
Date
x _________________________________________ ________________, 2000
Date
Area Code and Telephone Number__________________________________________________
This Letter must be signed by the registered holder(s) or DTC
participant(s) exactly as the name(s) appear(s) on the Existing Senior Notes or
on a security position listing or by any person(s) authorized to become
registered holder(s) by endorsements and documents transmitted herewith. If
signature is by a trustee, executor, administrator, guardian, officer or other
person acting in a fiduciary or representative capacity, please provide the
following information. See Instruction 3.
Name(s):________________________________________________________________________
(Please Type or Print)
Capacity (full title):__________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
Taxpayer Identification or Social Security No.:_________________________________
________________________________________________________________________________
SIGNATURE GUARANTEE
(If required by Instruction 3)
Signature(s) Guaranteed
By an Eligible Institution:_____________________________________________________
(Authorized Signature)
Name and Title: ______________________________________________________________
Name of Firm:___________________________________________________________________
Dated: ________________, 2000
- --------------------------------------------------------------------------------
IMPORTANT: This Letter (or a facsimile hereof), together with the certificates
for Existing Senior Notes or a Book-Entry Confirmation and all other required
documents or The Notice of Guaranteed Delivery, must be received by the Exchange
Agent prior to 5:00 p.m., New York City time, on the Expiration Date.
-7-
<PAGE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(See Instruction 5)
________________________________________________________________________________
PAYOR'S NAME: Firstar Bank, N.A.
________________________________________________________________________________
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR Social security number
FORM W-9 TAXPAYER IDENTIFICATION
NUMBER IN THE BOX AT RIGHT ______________________
AND CERTIFY BY SIGNING AND OR
DATING BELOW Employer Identification
number
_______________________
_____________________________________________________
Department of the Treasury Part 2 - FOR PAYEES EXEMPT FROM BACK
Internal Revenue Service WITHHOLDING (See the Guidelines for Certification
of Taxpayer Identification Number on Substitute
Form W-9).
_____________________________________________________
PAYOR'S REQUEST FOR Part 3 - CERTIFICATION: UNDER THE PENALTIES OF
TAXPAYER PERJURY, I CERTIFY THAT:
IDENTIFICATION
NUMBER AND (1) the number shown on this form is my correct
CERTIFICATION taxpayer identification number (or I am waiting
for a number to be issued to me);
(2) I am not subject to backup withholding either
because: (a) I am exempt from backup
withholding, or (b) I have not been notified
by the Internal Revenue Service (the "IRS")
that I am subject to backup withholding as a
result of a failure to report all interest or
dividends, or (c) the IRS has notified me
that I am no longer subject to backup
withholding; and
(3) any other information provided on this form
is true and correct.
SIGNATURE________________________________
DATE___________________
You must cross out item (2) of the above
certification if you have been notified by the IRS
that you are subject to backup withholding because
of underreporting of interest or dividends on your
tax return and you have not been notified by the
IRS that you are no longer subject to backup
withholding.
________________________________________________________________________________
-8-
<PAGE>
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of this Letter and Senior Notes; Guaranteed Delivery Procedures.
This Letter is to be completed by Holders of Existing Senior Notes either
if certificates are to be forwarded herewith or if tenders are to be made
pursuant to the procedures for delivery by book-entry transfer set forth in "The
Exchange Offer - Book-Entry Transfer" section of the Prospectus. Certificates
for all physically tendered Existing Senior Notes, or Book-Entry Confirmation,
as the case may be, as well as a properly completed and duly executed Letter (or
manually signed facsimile hereof), with any required signature guarantees, and
any other documents required by this Letter, must be received by the Exchange
Agent at the address set forth herein on or prior to the Expiration Date, or the
tendering Holder must comply with the guaranteed delivery procedures set forth
below. Existing Senior Notes tendered hereby must be in denominations of
principal amount of $1,000 and any integral multiples thereof.
Holders who tender their Existing Senior Notes by delivering an Agent's
Message do not need to submit this Letter.
Holders whose certificates for Existing Senior Notes are not immediately
available or who cannot deliver their certificates and all other required
documents to the Exchange Agent on or prior to the Expiration Date, or who
cannot complete the procedure for book-entry transfer on a timely basis, may
tender their Existing Senior Notes pursuant to the guaranteed delivery
procedures set forth in "The Exchange Offer - Guaranteed Delivery Procedures"
section of the Prospectus. Pursuant to such procedures, (i) such tender must be
made through an Eligible Institution, (ii) prior to 5:00 P.M., New York City
time, on the Expiration Date, the Exchange Agent must receive from such Eligible
Institution a properly completed and duly executed letter (or a facsimile
thereof) and Notice of Guaranteed Delivery, substantially in the form provided
by the Company (by facsimile transmission, mail or hand delivery), setting forth
the name and address of the Holder of Existing Senior Notes and the amount of
Existing Senior Notes tendered stating that the tender is being made thereby and
guaranteeing that within three New York Stock Exchange ("NYSE") trading days
after the Expiration Date, the certificates for all physically tendered Existing
Senior Notes, in proper form for transfer, or a Book-Entry Confirmation, as the
case may be, and any other documents required by this Letter will be deposited
by the Eligible Institution with the Exchange Agent, and (iii) the certificates
for all physically tendered Existing Senior Notes, in proper form for transfer,
or a Book-Entry Confirmation, as the case may be, and all other documents
required by this Letter, are received by the Exchange Agent within three NYSE
trading days after the Expiration Date.
The method of delivery of this Letter, the Existing Senior Notes and all
other required documents is at the election and risk of the tendering Holders,
and the delivery will be deemed made only when actually received or confirmed by
the Exchange Agent. If delivery is by mail, registered mail, properly insured,
with return receipt requested, or overnight delivery service is recommended. In
all cases, sufficient time should be allowed to ensure timely delivery.
See "The Exchange Offer" section of the Prospectus.
2. Partial Tenders (not applicable to Holders who tender by book-entry
transfer).
If less than all of the Existing Senior Notes evidenced by a submitted
certificate are to be tendered, the tendering Holder(s) should fill in the
aggregate principal amount of the Existing Senior Notes to be tendered in the
box above entitled "Description of Existing Senior Notes--Principal
-9-
<PAGE>
Amount Tendered." A reissued certificate representing the balance of
non-tendered Existing Senior Notes will be sent to such tendering Holder, unless
otherwise provided in the appropriate box on this Letter promptly after the
Expiration Date. All of the Existing Senior Notes delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of
Signatures.
If this Letter is signed by the registered Holder of the Existing Senior
Notes tendered hereby, the signature must correspond exactly with the name as
written on the face of the certificates without any change whatsoever. If this
Letter is signed by a participant in DTC, the signature must correspond with the
name as it appears on the security position listing as the owner of the Existing
Senior Notes.
If any tendered Existing Senior Notes are owned of record by two or more
joint owners, all of such owners must sign this Letter.
If any tendered Existing Senior Notes are registered in different names, it
will be necessary to complete, sign and submit as many separate copies of this
Letter as there are different registrations of Existing Senior Notes.
When this Letter is signed by the registered Holder(s) of the Existing
Senior Notes specified herein and tendered hereby, no endorsements of the
tendered Existing Senior Notes or separate bond powers are required. If,
however, the new Senior Notes are to be issued, or any untendered Existing
Senior Notes are to be reissued, to a person other than the registered Holder,
then endorsements of any Existing Senior Notes transmitted hereby or separate
bond powers are required. Signatures on the Existing Senior Notes or bond power
must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered Holder(s) of
any Existing Senior Notes specified herein, such Existing Senior Notes must be
endorsed or accompanied by appropriate bond powers, in either case signed
exactly as the name or names of the registered Holder or Holders appear(s) on
the Existing Senior Notes (or security position listing) and signatures on the
Existing Senior Notes or bond power must be guaranteed by an Eligible
Institution.
If this Letter or any certificates or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company, must
submit proper evidence satisfactory to the Company of their authority to so act.
Endorsements on Existing Senior Notes or signatures on bond powers required
by this Instruction 3 must be guaranteed by a firm or other entity identified in
Rule 17Ad-15 under the Exchange Act as an "eligible guarantor institution,"
including (as such terms are defined therein) (i) a bank, (ii) broker, dealer,
municipal securities broker or dealer or government securities broker or dealer,
(iii) a credit union, (iv) a national securities exchange, registered securities
association or clearing agency, or (v) a savings association that is a
participant in a Securities Transfer Association (an "Eligible Institution").
Signatures on this Letter need not be guaranteed by an Eligible Institution
if the Existing Senior Notes are tendered: (i) by a registered Holder of
Existing Senior Notes (which term, for purposes of the Exchange Offer, includes
any participant in the Book-Entry Transfer Facility whose name appears on a
security position listing as the Owner of such Existing Senior Notes) who has
not completed the box entitled "Special Issuance Instructions" or "Special
Delivery Instructions" on this Letter, or (ii) for the account of an Eligible
Institution.
-10-
<PAGE>
4. Special Issuance and Delivery Instructions.
Tendering Holders of Existing Senior Notes should indicate in the
applicable box on page 6 of this Letter the name and address to which New Senior
Notes issued pursuant to the Exchange Offer and/or substitute certificates
evidencing Existing Senior Notes not exchanged are to be issued or sent, if
different from the name or address of the person signing this Letter. In the
case of issuance in a different name, the employer identification or social
security number of the person named must also be indicated. Holders tendering
Existing Senior Notes by book-entry transfer may request that Existing Senior
Notes not exchanged be credited to such account maintained at the Book-Entry
Transfer Facility as such note Holder may designate hereon. If no such
instructions are given, such Existing Senior Notes not exchanged will be
returned to the name and address of the person signing this Letter.
5. Taxpayer Identification Number.
Federal income tax law generally requires that a tendering Holder whose
Existing Senior Notes are accepted for exchange must provide the Company (as
payor) with such Holder's correct Taxpayer Identification Number ("TIN") on the
substitute Form W-9 on page 8 of this Letter, which in the case of a tendering
Holder who is an individual, is his or her social security number. If the
Company is not provided with the current TIN or an adequate basis for an
exemption from backup withholding, such tendering Holder may be subject to a $50
penalty imposed by the Internal Revenue Service. In addition, the Exchange Agent
maybe required to withhold 31% of the amount of any reportable payments made
after the exchange to such tendering Holder of New Senior Notes. If withholding
results in an overpayment of taxes, a refund may be obtained.
Exempt Holders of Existing Senior Notes (including, among others, all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. Exempt holders, other than foreign
individuals, should furnish their TIN, write "Exempt" on the face of the
Substitute Form W-9 and sign, date and return the form to the Exchange Agent.
See the enclosed Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9 (the "W-9 Guidelines") for additional instructions. If
the tendering holder of Existing Senior Notes is a nonresident alien or foreign
entity not subject to backup withholding, such holder must give the Exchange
Agent a completed Form W-8 Certificate of Foreign Status.
To prevent backup withholding, each tendering Holder of Existing Senior
Notes must provide its correct TIN by completing the Substitute Form W-9 on page
8 of this Letter, certifying, under penalties of perjury, that the TIN provided
is correct (or that such Holder is awaiting a TIN) and that (i) the Holder is
exempt from backup withholding, or (ii) the Holder has not been notified by the
Internal Revenue Service that such Holder is subject to backup withholding as a
result of a failure to report all interest or dividends or (iii) the Internal
Revenue Service has notified the Holder that such Holder is no longer subject to
backup withholding. If the Existing Senior Notes are in more than one name or
are not in the name of the actual owner, such Holder should consult the W-9
Guidelines for information on which TIN to report. Failure to provide the
information on the form may subject the Holder to 31% federal income tax backup
withholding on all reportable payments tot he Holder. If such Holder does not
have a TIN, such Holder should consult the W-9 Guidelines for instructions on
applying for a TIN, apply for a TIN and write "applied for" in lieu of its TIN
in Part 1 of the Substitute Form W-9. Writing "applied for" on the form means
that such Holder has already applied for a TIN or that such Holder intends to
apply for one in the near future. If "applied for" is written in Part 1 of the
Substitute Form W-9 and the Exchange Agent is not provided with a TIN within 60
days, the Exchange Agent will withhold 31% of all reportable payments to the
Holder thereafter until a TIN is provided to the Exchange Agent.
-11-
<PAGE>
6. Transfer Taxes.
The Company will pay all transfer taxes, if any, applicable to the transfer
of Existing Senior Notes to it or its order pursuant to the Exchange Offer. If,
however, New Senior Notes and/or substitute Existing Senior Notes not exchanged
are to be delivered to, or are to be registered or issued in the name of, any
person other than the registered Holder of the Existing Senior Notes tendered
hereby, or if tendered Existing Senior Notes are registered in the name of any
person other than the person signing this Letter, or if a transfer tax is
imposed for any reason other than the transfer of Existing Senior Notes to the
Company or its order pursuant to the Exchange Offer, the amount of any such
transfer taxes (whether imposed on the registered Holder or any other person)
will be payable by the tendering Holder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted herewith, the amount of such
transfer taxes will be billed directly to such tendering Holder.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Existing Senior Notes specified in this
Letter.
7. No Conditional Tenders.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering Holders of Existing Senior Notes, by execution of this
Letter, shall waive any right to receive notice of the acceptance of their
Existing Senior Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of
Existing Senior Notes nor shall any of them incur any liability for failure to
give any such notice.
8. Mutilated, Lost, Stolen or Destroyed Existing Senior Notes.
Any Holder whose Existing Senior Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above for
further instructions. This Letter and related documents cannot be processed
until the procedures for replacing mutilated, lost, stolen or destroyed
certificates have been followed.
9. Withdrawal Rights.
Tenders of Existing Senior Notes may be withdrawn at any time prior to 5:00
P.M., New York City time, on the Expiration Date. For a withdrawal of a tender
of Existing Senior Notes to be effective, a written notice of withdrawal must be
received by the Exchange Agent at the address on page 1 of this Letter prior to
5:00 P.M., New York City time, on the Expiration Date. Any such notice of
withdrawal must (i) specify the name of the person having tendered the Existing
Senior Notes to be withdrawn (the "Depositor"), (ii) identify the Existing
Senior Notes to be withdrawn (including certificate number or numbers and the
principal amount of such Existing Senior Notes), (iii) contain a statement that
such Holder is withdrawing his election to have such Existing Senior Notes
exchanged, (iv) be signed by the Holder in the same manner as the original
signature on the Letter by which such Existing Senior Notes were tendered
(including any required signature guarantees) or be accompanied by documents of
transfer to have the Trustee with respect to the Existing Senior Notes register
the transfer of such Existing Senior Notes in the name of the person withdrawing
the tender and (v) specify the name in which such Existing Senior Notes are
registered, if different from that of the Depositor. If Existing Senior Notes
have been tendered pursuant to the procedure for book-entry transfer set forth
in "The Exchange Offer - Book-Entry Transfer" section of the Prospectus, any
notice of withdrawal must specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn Existing Senior
Notes and otherwise comply with the procedures of such facility.
-12-
<PAGE>
All questions as to the validity, form and eligibility (including time of
receipt) of such notices will be determined by the Company, whose determination
shall be final and binding on all parties. Any Existing Senior Notes so
withdrawn will be deemed not to have been validly tendered for exchange for
purposes of the Exchange Offer and no New Senior Notes will be issued with
respect thereto unless the Existing Senior Notes so withdrawn are validly
retendered. Any Existing Senior Notes that have been tendered for exchange but
which are not exchanged for any reason will be returned to the Holder thereof
without cost to such Holder (or, in the case of Existing Senior Notes tendered
by book-entry transfer into the Exchange Agent's account at the Book-Entry
Transfer Facility pursuant to the book-entry transfer procedures set forth in
"The Exchange Offer - Book-Entry Transfer" section of the Prospectus, such
Existing Senior Notes will be credited to an account maintained with the
Book-Entry Transfer Facility for the Existing Senior Notes) as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Existing Senior Notes may be retendered by following
the procedures described above at any time on or prior to 5:00 P.M., New York
City time, on the Expiration Date.
10. Irregularities.
The Company will determine, in its sole discretion, all questions as to the
form, validity, eligibility (including time of receipt) and acceptance for
exchange of any tender of Existing Senior Notes, which determination shall be
final and binding. The Company reserves the absolute right to reject any and all
tenders of any particular Existing Senior Notes not properly tendered or to not
accept any particular Existing Senior Notes which acceptance might, in the
judgment of the Company or its counsel, be unlawful. The Company also reserves
the absolute right, in its sole discretion, to waive any defects or
irregularities or conditions of the Exchange Offer as to any particular Existing
Senior Notes either before or after the Expiration Date (including the right to
waive the ineligibility of any holder who seeks to tender Existing Senior Notes
in the Exchange Offer). The interpretation of the terms and conditions of the
Exchange Offer as to any particular Existing Senior Notes either before or after
the Expiration Date (including the Letter of Transmittal and the instructions
thereto) by the Company shall be final and binding on all parties. Unless
waived, any defects or irregularities in connection with the tender of Existing
Senior Notes for exchange must be cured within such reasonable period of time as
the Company shall determine. Neither the Company, the Exchange Agent nor any
other person shall be under any duty to give notification of any defect or
irregularity with respect to any tender of Existing Senior Notes for exchange,
nor shall any of them incur any liability for failure to give such notification.
11. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus, this Letter, the Notice of Guaranteed
Delivery and other related documents may be directed to the Exchange Agent, at
the address and telephone number indicated on page 1 of this Letter.
-13-
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
7 3/8% SENIOR NOTES DUE 2009
OF
ALLIANT ENERGY RESOURCES, INC.
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer of Alliant Energy Resources,
Inc. (the "Company") made pursuant to the Prospectus dated ____________, 1999
(the "Prospectus") if certificates for the outstanding 7 3/8% Senior Notes due
2009 of the Company (the "Existing Senior Notes") are not immediately available
or if the procedure for book-entry transfer cannot be completed on a timely
basis or time will not permit all required documents to reach Firstar Bank,
N.A., as exchange agent (the "Exchange Agent"), prior to 5:00 P.M., New York
City time, on the Expiration Date of the Exchange Offer. This Notice of
Guaranteed Delivery may be delivered or transmitted by facsimile transmission,
overnight courier, mail or hand delivery to the Exchange Agent as set forth
below. In addition, in order to utilize the guaranteed delivery procedure to
tender Existing Senior Notes pursuant to the Exchange Offer, a completed, signed
and dated Letter of Transmittal (or facsimile thereof) must also be received by
the Exchange Agent prior to 5:00 P.M., New York City time, on the Expiration
Date. Capitalized terms not defined herein are defined in the Prospectus.
The Exchange Agent for the Exchange Offer is Firstar Bank, N.A.
By Facsimile Transmission By Registered or Certified Mail,
(For Eligible Institutions Only): Hand or overnight Courier:
(414) 276-4226 Firstar Bank, N.A.
1555 North RiverCenter Drive
Confirm by Telephone: Suite 301
(414) 905-5008 Milwaukee, Wisconsin 53212
Attention: Ms. Pamela Warner
DELIVERY OF THIS NOTICE TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL
NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A
LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN ELIGIBLE INSTITUTION
UNDER THE INSTRUCTIONS THERETO, THE SIGNATURE GUARANTEED MUST APPEAR IN THE
APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
Upon the terms and subject to the conditions set forth in the Prospectus
and the accompanying Letter of Transmittal, the undersigned hereby tenders to
the Company the principal amount of Existing Senior Notes of the series set
forth below pursuant to the guaranteed delivery procedures described in "The
Exchange Offer Guaranteed Delivery Procedures" section of the Prospectus.
___________________________________ _________________________________________
If Existing Senior Notes will be delivered
Total Principal Amount of Existing by book-entry transfer to The Depository
Senior Notes Tendered:* Trust Company, provide account number.
$__________ Account Number ___________________
Certificate Nos. (if available)
_______________________________
___________________________________ _________________________________________
* Must be in denominations of principal amount of $1,000 and any integral
multiple thereof.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
PLEASE SIGN HERE
X______________________________ _______________________________
X______________________________ _______________________________
Signature(s) of Owner(s) Date
or Authorized Signatory
Area Code and Telephone Number(s):___________________________________________
Must be signed by the registered holder(s) of Existing Senior Notes as
their name(s) appear(s) on the Existing Senior Notes or on a security position
listing, or by person(s) authorized to become registered holder(s) by
endorsement and documents transmitted with this Notice of Guaranteed Delivery.
If signature is by a trustee, executor administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, please provide the following information.
Please print name(s) and address(es)
Name(s):________________________________________________________________________
________________________________________________________________________________
Capacity:_______________________________________________________________________
Address(es):____________________________________________________________________
________________________________________________________________________________
Telephone Number: ______________________________________________________________
-2-
<PAGE>
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Exchange Act as an "eligible guarantor institution" including (as such terms
are defined therein) (i) a bank, (ii) broker, dealer, municipal securities
broker or dealer or government securities broker or dealer, (iii) a credit
union, (iv) a national securities exchange, registered securities association or
clearing agency, or (v) a savings association that is a participant in a
Securities Transfer Association (an "Eligible Institution"), hereby guarantees
that the certificates representing the principal amount of Existing Senior Notes
tendered hereby in proper form for transfer, or timely confirmation of the
book-entry transfer of such Existing Senior Notes into the Exchange Agent's
account at The Depository Trust Company pursuant to the procedures set forth in
"The Exchange Offer Guaranteed Delivery Procedures" section of the Prospectus,
together with any required signature guarantee and any other documents required
by the Letter of Transmittal, will be received by the Exchange Agent at the
address set forth above, no later than three New York Stock Exchange trading
days after the Expiration Date.
________________________________________________________________________________
_____________________________________ _______________________________________
Name of Firm Authorized Signature
_____________________________________ _______________________________________
Address Title
_____________________________________ Name:__________________________________
Zip Code (Please Type or Print)
_____________________________________ Dated:_________________________________
Telephone Number
________________________________________________________________________________
NOTE: DO NOT SEND CERTIFICATES FOR EXISTING SENIOR NOTES WITH THIS FORM.
CERTIFICATES FOR EXISTING SENIOR NOTES SHOULD BE SENT ONLY WITH A COPY OF
YOUR PREVIOUSLY EXECUTED LETTER OF TRANSMITTAL.
-3-
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines For Determining The Proper Name And Identification Number to
Give The Payer.-Social Security numbers have nine digits separated by two
hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits
separated by only one hyphen: i.e., 00-0000000. The table below will help
determine the name and number to give the payer.
<TABLE>
<CAPTION>
- --------------------------------------------------------- ------------------------------------------------------------
Give the name and
Give the name and EMPLOYER
SOCIAL SECURITY IDENTIFICATION
For this type of account number of- For this type of account number of-
- --------------------------------------------------------- ------------------------------------------------------------
<S> <C> <C> <C>
1. Individual The individual 6. Sole proprietorship The owner(3)
2. Two or more The actual owner of 7. A valid trust, estate or Legal entity(4)
individuals (joint the account or, if pension trust
account combined funds, the
first individual on 8. Corporate The corporation
the account
9. Association, club, The organization
3. Custodian account of a The minor(2) religious, charitable,
minor (Uniform Gift to educational or other tax-
Minors Act) exempt organization
4. a. The usual The grantor-trustee(1) 10. Partnership The partnership
revocable savings trust
account (grantor is 11. A broker or registered The broker or
also trustee) nominee nominee
b. So-called trust The actual owner(1) 12. Account with the The public entity
account that is not a Department of Agriculture
legal or valid trust in the name of a public
under state law entity (such as a state or
local government, school
5. Sole proprietorship The owner(3) district or prison) that
receives agricultural
program payments
- --------------------------------------------------------- ------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a
social security number, that person's number must be furnished.
(2) Circle the minor's name and furnish the minor's social security number.
(3) You must show your individual name, but you may also enter your business or "doing business as" name. You may use
either your social security number or employer identification number.
(4) List first and circle the name of the legal trust, estate or pension trust. (Do not furnish the identifying number
of the personal representative or trustee unless the legal entity itself is not designated in the account title.)
Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name
listed.
</TABLE>
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 2
OBTAINING A NUMBER For interest and dividends, all
If you don't have a taxpayer listed payees are exempt except the
identification number, apply for one payee in item (9). For broker
immediately. To apply for a social transactions, payees listed in items
security number, get Form SS-5 from (1) through (13) and a person
your local Social Security registered under the Investment
Administration office. Get Form SS-4 Advisers Act of 1940 who regularly act
to apply for an employer as a broker are exempt.
identification number. You can get
Form SS-4 from the IRS by calling Exempt payees described above
1-800-TAX-FORM (1-800-829-3676). should file Form W-9 to avoid possible
erroneous backup withholding. FURNISH
Payees Exempt From Backup Withholding YOUR TAXPAYER IDENTIFICATION NUMBER,
The following is a list of payees WRITE "EXEMPT" IN PART II OF THE FORM,
specifically exempted from backup SIGN AND DATE THE FORM AND RETURN IT TO
withholding: THE PAYER. If you are a nonresident
(1) An organization exempt from tax alien or a foreign entity not subject
under section 501(a), or an IRA to backup withholding, give the payer a
or a custodian account under completed Form W-8, Certificate of
section 403(b)(7) if the account Foreign Status.
satisfies the requirements of
section 401(f) Privacy Act Notice.-Section 6109
requires most recipients of dividend,
(2) The United States or of any interest or other payments to give
agencies or instrumentalities. taxpayer identification numbers of
payers who must report the payments to
(3) A state, the District of the IRS. The IRS uses the numbers for
Columbia, a possession of the identification purposes and to help
United States, or any of their verify the accuracy of your return. The
subdivisions or IRS may also provide this information
instrumentalities. to the Department of Justice for
criminal and civil litigation and to
(4) A foreign government or any of cities, states and the District of
its political subdivisions, Columbia to carry out their tax laws.
agencies or instrumentalities. Payers must be given the numbers
whether or not recipients are required
(5) An international organization or to file tax returns. Payers must
any of its agencies or generally withhold 31 percent of
instrumentalities. taxable interest, dividend and certain
other payments to a payee who does not
(6) A corporation. furnish a taxpayer identification
number to a payer. Certain penalties
(7) A foreign central bank of issue. may also apply.
(8) A dealer in securities or Penalties
commodities required to register
in the United States or a (1) Failure To Furnish Taxpayer
possession of the United States. Identification Number.-If you fail to
furnish your correct taxpayer
(9) A futures commission merchant identification number to a payer, you
registered with the Commodity are subject to a penalty of $50 for
Futures Trading Commission each such failure unless your failure
is due to reasonable cause and not to
(10) A real estate investment trust. willful neglect.
(11) An entity registered at all times (2) Civil Penalty For False
during the tax year under the Information With Respect To
Investment Company Act of 1940. Withholding.-If you make a false
statement with no reasonable basis
(12) A common trust fund operated by a which results in no imposition of
bank under section 584(a). backup withholding, you are subject to
a penalty of $500.
(13) A financial institution.
(3) Criminal Penalty For
(14) A middleman known in the Falsifying Information. - Willfully
investment community as a nominee falsifying certifications or
or listed in the most recent affirmations may subject you to
publication of the American criminal penalties including fines
Society of Corporate Secretaries, and/or imprisonment.
Inc., Nominee List.
FOR ADDITIONAL INFORMATION CONTACT
(15) A trust exempt from tax under YOUR TAX CONSULTANT OR THE INTERNAL
section 664 or described in REVENUE SERVICE.
section 4947.
ALLIANT ENERGY RESOURCES, INC.
Offer to Exchange
Registered 7 3/8% Senior Notes due 2009
For Any and All Outstanding Unregistered 7 3/8% Senior Notes due 2009
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON ___________, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
____________, 1999
To Our Clients:
Enclosed for your consideration is a Prospectus, dated ____________, 1999
(the "Prospectus"), and the related Letter of Transmittal (the "Letter of
Transmittal"), relating to the offer (the "Exchange Offer") of Alliant Energy
Resources, Inc. (the "Company") to exchange its 7 3/8% Senior Notes due 2009
(the "New Senior Notes") which have been registered under the Securities Act of
1933, as amended, for all of its outstanding unregistered 7 3/8% Senior Notes
due 2009 (the "Existing Senior Notes"), upon the terms and subject to the
conditions described in the Prospectus and the Letter of Transmittal. The
Exchange Offer is being made in order to satisfy certain obligations of the
Company contained in the Registration Rights Agreement dated November 9, 1999,
by and between the Company and the initial purchasers named therein, related to
the 7 3/8% Senior Notes due 2009.
This material is being forwarded to you as the beneficial owner of the
Existing Senior Notes held by us for your account but not registered in your
name. A tender of such Existing Senior Notes may only be made by us as the
holder of record and pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to tender on
your behalf the Existing Senior Notes held by us for your account, pursuant to
the terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal. We urge you to read the Prospectus carefully before instructing us
as to whether or not to tender your Existing Senior Notes.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Existing Senior Notes on your behalf in
accordance with the provisions of the Exchange Offer. The Exchange Offer will
expire at 5:00 p.m., New York City time, on ____________, 2000, unless extended
by the Company. Any Existing Senior Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time before the Expiration Date.
If you wish to have us tender your Existing Senior Notes, please instruct
us by completing, executing and returning to us the instruction form enclosed
with this letter. The Letter of Transmittal is furnished to you for information
only and may not be used directly by you to tender Existing Senior Notes.
If we do not receive written instructions in accordance with the procedures
presented in the Prospectus and the Letter of Transmittal we will not tender any
of the outstanding Existing Senior Notes on your account.
INSTRUCTIONS
Instruction to Registered Holder and/or DTC Participant
from Beneficial Owner
of
7 3/8% Senior Notes due 2009
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON ___________, 1999, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
To Registered Holder and/or Depository Trust Company Participant:
The undersigned hereby acknowledges receipt of the Prospectus dated
____________, 1999 (the "Prospectus") of Alliant Energy Resources, Inc., a
Wisconsin corporation (the "Company"), and the accompanying Letter of
Transmittal (the "Letter of Transmittal"), that together constitute the
Company's offer (the "Exchange Offer") to exchange its 7 3/8% Senior Notes due
2009 (the "New Senior Notes") which have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), for all of its outstanding
registered 7 3/8% Senior Notes due 2009 (the "Existing Senior Notes").
Capitalized terms used but not defined herein have the meanings ascribed to them
in the Prospectus.
This will instruct you, the registered holder and/or Depository Trust
Company Participant, as to the action to be taken by you relating to the
Exchange Offer with respect to the Existing Senior Notes held by you for the
account of the undersigned.
The aggregate principal amount of Existing Senior Notes held by you for the
account of the undersigned is (fill in amount):
$__________ of the outstanding 7 3/8% Senior Notes due 2009.
With respect to the Exchange Offer, the undersigned hereby instructs you
(check appropriate box):
|_| TO TENDER the following Existing Senior Notes held by you for the account
of the undersigned (insert principal amount of Existing Senior Notes to be
tendered, if less than all):
$__________ of the outstanding 7 3/8% Senior Notes due 2009.
|_| NOT TO TENDER any Existing Senior Notes held by you for the account of the
undersigned.
If the undersigned instructs you to tender Existing Senior Notes held by
you for the account of the undersigned, it is understood that you are authorized
to make, on behalf of the undersigned (and the undersigned, by its signature
below, hereby makes to you), the representations and warranties contained in the
Letter of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that (i) the
undersigned is not an "affiliate" of the Company, (ii) any New Senior Notes to
be received by the undersigned are being acquired in the ordinary course of its
business, and (iii) the undersigned has no arrangement or understanding with any
person to participate in a distribution (within the meaning of the Securities
Act) of New Senior Notes to be received in the Exchange Offer. If the
undersigned is a broker-dealer that will receive New Senior
<PAGE>
Notes for its own account in exchange for Existing Senior Notes, it represents
that the Existing Senior Notes to be exchanged for New Senior Notes were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection with
any resale of such New Senior Notes; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
________________________________________________________________________________
SIGN HERE
Name of Beneficial Owner(s)_____________________________________________________
Signature(s)____________________________________________________________________
Name(s) (please print)__________________________________________________________
Address ________________________________________________________________________
________________________________________________________________________________
Telephone Number _______________________________________________________________
Taxpayer Identification or Social Security No.__________________________________
Date ___________________________________________________________________________
________________________________________________________________________________
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ALLIANT ENERGY RESOURCES, INC.
Offer to Exchange
Registered 7 3/8% Senior Notes due 2009
For Any and All Outstanding Unregistered 7 3/8% Senior Notes due 2009
____________, 1999
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON ___________, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Alliant Energy Resources, Inc. (the "Company") is offering, upon and
subject to the terms and conditions set forth in the Prospectus, dated
____________, 1999 (the "Prospectus"), and the enclosed Letter of Transmittal
(the "Letter of Transmittal"), to exchange (the "Exchange Offer") its 7 3/8%
Senior Notes due 2009 (the "New Senior Notes") which have been registered under
the Securities Act of 1933, as amended, for all of its outstanding unregistered
7 3/8% Senior Notes due 2009 (the "Existing Senior Notes"). The Exchange Offer
is being made in order to satisfy certain obligations of the Company contained
in the Registration Rights Agreement dated November 9, 1999, by and between the
Company and the initial purchasers named therein, relating to the 7 3/8% Senior
Notes due 2009.
We are requesting that you contact your clients for whom you hold Existing
Senior Notes regarding the Exchange Offer. For your information and for
forwarding to your clients for whom you hold Existing Senior Notes registered in
your name or in the name of your nominee, or who hold Existing Senior Notes
registered in their own names, we are enclosing the following documents:
1. The Prospectus;
2. The Letter of Transmittal for your use and for the information of your
clients;
3. A form of Notice of Guaranteed Delivery;
4. A form of letter which may be sent to your clients for whose accounts
you hold Existing Senior Notes registered in your name or the name of your
nominee, along with an instruction form for obtaining such clients' instructions
with respect to the Exchange Offer; and
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
Your prompt action is required. The Exchange Offer will expire at 5:00
p.m., New York City time, on ____________, 2000, unless extended by the Company
(the "Expiration Date"). Existing Senior Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time before the Expiration Date.
To participate in the Exchange Offer, certificates for Existing Senior
Notes, or a timely confirmation of a book-entry transfer of such Existing Senior
Notes into the Exchange Agent's account
<PAGE>
at the Depository Trust Company, together with a duly executed and properly
completed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees and any other required documents, should be sent to the
Exchange Agent, all in accordance with the instructions set forth in the Letter
of Transmittal and the Prospectus.
If the registered holder of Existing Senior Notes desires to tender, but
such Existing Senior Notes are not immediately available, or time will not
permit such holder's Existing Senior Notes or other required documents to reach
the Exchange Agent before the Expiration Date, or the procedure for book-entry
transfer cannot be completed on a timely basis, a tender may be effected by
following the guaranteed delivery procedures described in the Prospectus under
"The Exchange Offer - Guaranteed Delivery Procedures."
We will, upon request, reimburse brokers, dealers, commercial banks and
trust companies for reasonable and necessary costs and expenses incurred by them
in forwarding the Prospectus and the related documents to the beneficial owners
of Existing Senior Notes held by them as nominee or in a fiduciary capacity. We
will pay or cause to be paid all transfer taxes applicable to the exchange of
Existing Senior Notes pursuant to the Exchange Offer, except as set forth in
Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests
for additional copies of the enclosed materials, should be directed to the
Exchange Agent at its address and telephone number set forth on the front of the
Letter of Transmittal.
Very truly yours,
FIRSTAR BANK, N.A.
Nothing herein or in the enclosed documents shall constitute you or any
person as an agent of the Company or the Exchange Agent, or authorize you or any
other person to use any document or make any statements on behalf of either of
them with respect to the Exchange Offer, except for statements expressly made in
the Prospectus or the Letter of Transmittal.
-2-
