As filed with the Securities and Exchange Commission on November 22, 1995.
Registration No. 33-62259
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
under
The Securities Act of 1933
_______________________
IES UTILITIES INC.
(Exact Name of Registrant as Specified in Charter)
IOWA 42-0331370
(State of Incorporation) (IRS Employer Identification Number)
IES Tower
200 First Street S.E.
Cedar Rapids, Iowa 52401
(319) 398-4411
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
_______________________
Stephen W. Southwick
Vice President, General Counsel & Secretary
IES Utilities Inc.
200 First Street S.E.
Cedar Rapids, Iowa 52401
(319) 398-8147
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
It is respectfully requested that the Commission send
copies of all notices, orders and communications to:
Richard L. Harden
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, NY 10004-1490
(212) 858-1228
_______________________
Approximate date of commencement of proposed sale of
securities to the public: From time to time after this
Registration Statement becomes effective.
_______________________
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box.
If any of the securities being registered on this Form
are to be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or
interest reinvestment plans, check the following box. X
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities
Act, please 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(c) 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 delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.
The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant 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.
Information contained herein is subject to completion or
amendment. A registration statement relating to these
securities has been filed with the Securities and Exchange
Commission. These securities may not be sold nor may offers
to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer
to buy nor shall there by any sale of these securities in
any State in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under
the securities laws of any such State.
PROSPECTUS
Subject to Completion, Dated November 22, 1995
$250,000,000
IES UTILITIES INC.
DEBT SECURITIES
IES Utilities Inc. (the "Company") may from time to time
issue up to $250,000,000 aggregate principal amount of its
various debt securities, including Collateral Trust Bonds and
Junior Subordinated Debentures (collectively) referred to as
"Securities"), in one or more series, at prices and on terms
to be determined at the time of sale. The terms of the
Securities in respect of which this Prospectus is being
delivered, including, where applicable, the series
designation, the principal amount of the series, the maturity,
the rate and time of payment of interest, the initial public
offering price, the provisions for redemption and other
provisions, will be set forth in one or more Prospectus
Supplements (each a "Prospectus Supplement"), together with
the terms of offering of the Securities.
___________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
_________________________
The Securities may be sold by the Company through
underwriters, dealers or agents, or directly to one or more
purchasers pursuant to terms fixed at the time of sale. The
Prospectus Supplement will set forth the names of the
underwriters, dealers or agents, if any, any applicable
commissions or discounts, and the net proceeds to the Company
from any such sale. See "Plan of Distribution" for possible
indemnification arrangements for underwriters, dealers or
agents.
The date of this Prospectus is ___________, 1995.
AVAILABLE INFORMATION
The Company is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith files reports and
other information with the Securities and Exchange Commission
(the "SEC"). Such reports and other information can be
inspected and copied at the public reference facilities
maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; and at the SEC's
regional offices located at 1400 Citicorp Center, 500 West
Madison Street, Chicago, Illinois 60601 and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies of such
materials can be obtained at prescribed rates from the Public
Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. In addition, such reports and other
information concerning the Company can be inspected at the
principal office of the Company, 200 First Street S.E., Cedar
Rapids, Iowa 52401.
The Company has filed with the SEC a registration
statement on Form S-3 (herein together with all amendments and
exhibits referred to as the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Securities offered hereby. This
Prospectus does not contain all of the information set forth
in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the
SEC. For further information, reference is made to the
Registration Statement and to the exhibits and schedules filed
therewith, which may be inspected without charge at the office
of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549.
Copies of such documents may also be obtained from the SEC at
prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the SEC
pursuant to the Exchange Act are incorporated in this
Prospectus by reference:
1. The Company's Annual Report on Form 10-K for
the year ended December 31, 1994;
2. The Company's Quarterly Reports on Form 10-Q
for the quarters ended March 31, 1995, June 30,
1995, and September 30, 1995; and
3. The Company's Current Reports on Form 8-K dated
March 15, 1995, April 27, 1995, May 15, 1995, and
November 21, 1995.
All reports and other documents subsequently filed
by the Company pursuant to Sections 13, 14 or 15(d) of the
Exchange Act prior to the termination of the offering of the
Securities shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of
filing such documents; provided, however, that documents filed
by the Company pursuant to Sections 13, 14 or 15(d) of the
Exchange Act prior to the end of the fiscal year covered by
the most recent Annual Report on Form 10-K of the Company
shall not be deemed to be incorporated herein by reference or
to be a part hereof from and after the date of the filing of
such Annual Reports on Form 10-K. The documents incorporated
herein by reference are sometimes hereinafter called the
"Incorporated Documents." Any statement contained herein or
in an Incorporated Document shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that
a statement contained herein or in a Prospectus Supplement or
in any subsequently filed Incorporated Document modifies or
supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The information relating to the Company contained in this
Prospectus summarizes, is based upon, or refers to,
information and financial statements contained in one or more
Incorporated Documents; accordingly, such information
contained herein is qualified in its entirety by reference to
Incorporated Documents and should be read in conjunction
therewith.
The Company will provide without charge to each person,
including any beneficial owner, to whom a copy of this
Prospectus has been delivered, upon the written or oral
request of such person, a copy of any or all of the
Incorporated Documents (not including exhibits to such
documents unless such exhibits are specifically incorporated
by reference into such documents). Requests for such copies
should be directed to William Jurgensen, Director of
Shareholder Services, IES Industries Inc., 200 First Street
S.E., Cedar Rapids, Iowa 52401, telephone (319) 398-7755.
No person has been authorized to give any information or
make any representation not contained in this Prospectus or,
with respect to any Security, the Prospectus Supplement
relating thereto, and, if given or made, such information or
representation must not be relied upon as having been
authorized by the Company or any underwriter. This Prospectus
and any Prospectus Supplement do not constitute an offer to
sell or a solicitation of an offer to buy any of the
securities offered hereby in any jurisdiction to any person to
whom it is unlawful to make such offer in such jurisdiction.
Neither the delivery of this Prospectus and a Prospectus
Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that there has been no
change in the affairs of the Company since the date of that
Prospectus Supplement.
TABLE OF CONTENTS
AVAILABLE INFORMATION 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE 2
THE COMPANY 3
USE OF PROCEEDS 4
SELECTED CONSOLIDATED FINANCIAL INFORMATION 5
PLAN OF DISTRIBUTION 6
DESCRIPTION OF THE COLLATERAL TRUST BONDS 6
DESCRIPTION OF THE 1940 INDENTURE 18
DESCRIPTION OF THE ISU 1923 INDENTURE 24
DESCRIPTION OF THE SUBORDINATED INDENTURE 28
GLOBAL SECURITIES 38
EXPERTS 39
LEGAL MATTERS 39
THE COMPANY
The Company was incorporated under the laws of the State
of Iowa on May 25, 1925. The Company is a public utility
operating company with all of its operations in the State of
Iowa and is a wholly-owned subsidiary of IES Industries Inc.
("Industries"), a public utility holding company. The Company
is the surviving corporation following the merger on December
31, 1993 of Iowa Southern Utilities Company ("Iowa Southern"
or "ISU") with and into Iowa Electric Light and Power Company
("IE"). The surviving corporation was subsequently renamed IES
Utilities Inc.
The Company supplies electric energy and natural gas to a
service area with an estimated population of approximately
1,180,000. For the twelve months ended December 31, 1994, the
Company derived approximately 78% of its revenues from the
sale of electric energy and approximately 20% from the sale of
natural gas. At December 31, 1994, the Company provided
service to approximately 330,000 electric and 173,000 natural
gas retail customers as well as 32 resale customers in more
than 550 Iowa communities. The Company's principal executive
offices are located at 200 First Street S.E., Cedar Rapids,
Iowa 52401, telephone (319) 398-4411.
Additional information concerning the Company and its
operations is contained in the Incorporated Documents, to
which reference is hereby made.
USE OF PROCEEDS
Except as otherwise provided in the applicable Prospectus
Supplement or a supplement thereto, the Company intends to use
the net proceeds to be received from the issuance and sale of
the Securities offered hereby (i) to reduce short-term debt,
including short-term debt incurred to retire on October 25,
1995, $50 million principal amount of the Company's First
Mortgage Bonds, Series X, 9.42% due 1995, (ii) to retire in
September 1996, $15 million principal amount of the Company's
First Mortgage Bonds, Series J, 6 1/4% due 1996, and (iii) for
general corporate purposes, including the Company's
construction program.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(In thousands, except percentages and ratios)
The financial data presented below should be read in
conjunction with the Company's consolidated financial
statements and notes thereto which are incorporated by
reference in this Prospectus.
Twelve
Months Ended Year Ended December 31,
September 30,
1995
(unaudited) 1994 1993 1992 1991 1990
Income Summary:
Operating
revenues...... $696,815 $685,366 $713,750 $610,262 $621,993 $595,477
Operating
income....... 136,486 135,591 143,329 100,361 101,600 96,225
Net
income....... 58,348 61,210 67,970 45,291 47,563 45,969
Dividend
requirements
on preferred
stock....... 914 914 914 1,729 2,170 2,400
Net income
available for
common
stock(1).... 57,434 60,296 67,056 43,562 45,393 43,569
Cash dividends
declared
on common
stock...... 48,000 52,000 31,300 24,721 45,321 49,516
Ratio of earnings
to fixed
charges(2). 3.00 3.18 3.41 2.49 2.64 2.65
September 30, 1995
(unaudited) (3)
Percent of
Actual Capitalization
Capitalization
Summary:
Long-term
debt......... $480,553 47.0%
Preferred
stock........ 18,320 1.8%
Common
equity....... 523,010 51.2%
Total....... $1,021,883 100%
(1) All of the Company's common stock is owned by IES
Industries Inc.
(2) For purposes of computation of these ratios, (a) earnings
have been calculated by adding fixed charges and federal
and state income taxes to net income; (b) fixed charges
consist of interest (including amortization of debt
expense, premium and discount) on long-term and other
debt, and the estimated interest component of rents.
(3) Does not reflect the issuance of the Securities or the
use of the proceeds thereof.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of three ways:
(i) through underwriters or dealers, (ii) directly to one or
more purchasers, or (iii) through agents. The applicable
Prospectus Supplement will set forth the terms of any offering
of the Securities, including the names of any underwriters or
agents, the purchase price of such Securities, the proceeds to
the Company from such sale, any underwriting discounts and
other items constituting underwriters' compensation, the
initial public offering price, and any discounts or
concessions allowed or reallowed or paid to dealers.
If underwriters are used in the sale, the Securities will
be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale.
Such Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters
or by underwriters without a syndicate. Unless otherwise set
forth in the applicable Prospectus Supplement, the obligations
of the underwriters to purchase such Securities will be
subject to certain conditions precedent, and the underwriters
will be obligated to purchase all of such Securities if any of
such Securities are purchased. The initial public offering
prices and any discounts or concessions allowed or reallowed
or paid to dealers may be changed from time to time.
The Securities may also be sold directly by the Company
or through agents designated by the Company from time to time.
Any agent involved in the offer or sale of the Securities will
be named, and any commissions payable by the Company to such
agent will be set forth, in the applicable Prospectus
Supplement. Unless otherwise indicated in the applicable
Prospectus Supplement, any such agent will act on a reasonable
efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus Supplement,
the Company will authorize agents, underwriters, or dealers to
solicit offers by certain specified institutions to purchase
the Securities at the public offering price set forth in such
Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a future date specified
in such Prospectus Supplement or a supplement thereto. Such
contracts will be subject only to those conditions set forth
in the applicable Prospectus Supplement, and such Prospectus
Supplement will set forth the commissions payable for
solicitation of such contracts.
Any underwriters, dealers, or agents participating in the
distribution of the Securities may be deemed to be
underwriters, and any discounts or commissions received by
them on the sale or resale of the Securities may be deemed to
be underwriting discounts and commissions, under the
Securities Act. Agents and underwriters may be entitled under
agreements entered into with the Company to indemnification by
the Company against certain liabilities, including liabilities
under the Securities Act. Agents and underwriters may be
customers of, engage in transactions with, or perform services
for the Company or its affiliates in the ordinary course of
business.
DESCRIPTION OF THE COLLATERAL TRUST BONDS
General
If the Securities are issued as Collateral Trust Bonds,
those Collateral Trust Bonds will be issued in one or more
series as fully registered bonds, without coupons, under an
Indenture of Mortgage and Deed of Trust, dated as of September
1, 1993 (the "Original Mortgage"), between the Company and The
First National Bank of Chicago, as Trustee (the "Trustee"), as
amended and supplemented. As used herein, the term "Bonds"
refers to any series of Collateral Trust Bonds in respect of
which this Prospectus is being delivered. The Original
Mortgage as amended and supplemented by various supplemental
indentures including one or more supplemental indentures
relating to any issuance of Collateral Trust Bonds, is
hereinafter referred to as the "Mortgage." The summaries
herein concerning the Collateral Trust Bonds do not purport to
be complete and are subject to the detailed provisions of the
Mortgage, a copy of which was previously filed with the
Commission, is listed as an exhibit to the Registration
Statement of which this Prospectus is a part, and is
incorporated herein by reference. Capitalized terms used
herein which are not otherwise defined in this Prospectus have
the meanings ascribed thereto in the Mortgage. Wherever
particular provisions of the Mortgage or terms defined therein
are referred to, such provisions or definitions are
incorporated by reference as a part of the statements made
herein and such statements are qualified in their entirety by
such reference. References to article and section numbers
herein, unless otherwise indicated, are references to article
and section numbers of the Mortgage.
The Mortgage provides that, in addition to Collateral
Trust Bonds, additional debt securities may be issued
thereunder, without limitation as to the aggregate principal
amount. (See "Issuance of Additional Securities" below.) The
Bonds will be secured equally and ratably with all other
securities issued under the Mortgage.
Terms of Specific Series of the Bonds
Reference is made to the applicable Prospectus
Supplement, or a supplement thereto, for a description of the
following terms of the Bonds: (i) the title of such Bonds;
(ii) the limit, if any, upon the aggregate principal amount of
such Bonds; (iii) the date or dates on which the principal of
such Bonds is payable; (iv) the rate or rates at which such
Bonds will bear interest, if any; the date or dates from which
such interest will accrue; the dates on which such interest
will be payable ("Interest Payment Dates"); and the regular
record dates for the interest payable on such Interest Payment
Dates; (v) the option, if any, of the Company to redeem such
Bonds and the periods within which or the dates on which, the
prices at which and the terms and conditions upon which, such
Bonds may be redeemed, in whole or in part, upon the exercise
of such option; (vi) the obligation, if any, of the Company to
redeem or purchase Bonds pursuant to any sinking fund or
analogous provisions or at the option of the Holder (as
hereinafter defined) and the periods within which or the dates
on which, the prices at which and the terms and conditions
upon which, such Bonds will be redeemed, in whole or in part,
pursuant to such obligation; (vii) the denominations in which
such Bonds will be issuable; (viii) whether such Bonds are to
be issued in whole or in part in the form of one or more
global Bonds and, if so, the identity of the depositary for
such global Bonds; and (ix) any other terms of such Bonds not
inconsistent with the provisions of the Mortgage.
Payment of Bonds; Transfers; Exchanges
Except as may be provided in the applicable Prospectus
Supplement, or a supplement thereto, interest, if any, on each
Bond payable on each Interest Payment Date will be paid to the
person in whose name such Bond is registered (the registered
holder of any Bond being hereinafter called a "Holder") as of
the close of business on the regular record date relating to
such Interest Payment Date; provided, however, that interest
payable at maturity (whether at stated maturity, upon
redemption or acceleration of maturity or otherwise,
hereinafter "Maturity") will be paid to the person to whom
principal is paid. However, if there has been a default in
the payment of interest on any Bond, such defaulted interest
may be payable to the Holder of such Bond as of the close of
business on a date selected by the Trustee which is not more
than 15 days and not less than 10 days prior to the date
proposed by the Company for payment of such defaulted interest
or in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Bond may
be listed, if the Trustee deems such manner of payment
practicable. (Section 307)
Principal of and premium, if any, and interest on the
Bonds at Maturity will be payable upon presentation of the
Bonds at the office of the Trustee in Chicago, Illinois or, at
the option of the Holder, at the principal corporate trust
office of The First National Bank of Chicago in New York, New
York. The transfer of Bonds may be registered, and the Bonds
may be exchanged for other Bonds of the same series and
tranche, of authorized denominations of like tenor and
aggregate principal amount, at the office of The First
National Bank of Chicago in New York, New York as Bond
Registrar for the Bonds. The Company will not be required to
issue, and no Bond Registrar will be required to register the
transfer of or to exchange (a) Collateral Trust Bonds of any
series (including the Bonds offered hereby) during a period of
15 days prior to giving any notice of redemption thereof or
(b) any Bond selected for redemption in whole or in part,
except the unredeemed portion of any Bond being redeemed in
part. (Section 305)
The Company may change the place for payment or
registration of transfer or exchange of the Bonds, may appoint
one or more additional Paying Agents or Bond Registrars
(including, without limitation, the Company) and may remove
any Paying Agent or Bond Registrar, all at its discretion.
The applicable Prospectus Supplement or a supplement thereto,
will identify any such changes prior to the date of such
Prospectus Supplement or supplement thereto. (Section 602)
Redemption
Any terms for the optional or mandatory redemption of the
Bonds will be set forth in a Prospectus Supplement or a
supplement thereto. Except as will otherwise be provided with
respect to Bonds redeemable at the option of the Holder,
redeemable Bonds will be redeemed only upon notice by mail not
less than 30 nor more than 60 days prior to the date fixed for
redemption and, if less than all the Bonds of a series, or any
tranche thereof, are to be redeemed, the particular Bonds to
be redeemed will be selected by such method as will be
provided for any particular series, or in the absence of any
such provision, by such method as the Bond Registrar deems
fair and appropriate. (Sections 503 and 504)
Any notice of redemption of Bonds, at the option of the
Company, may state that such redemption will be conditional
upon receipt by the Trustee, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of
and premium, if any, and interest, if any, on such Bonds and
that if such money has not been so received, such notice will
be of no force and effect and the Company will not be required
to redeem such Bonds. (Section 504)
No Maintenance, Replacement or Sinking Funds
While the Mortgage contains provisions for the
maintenance of the Mortgage Property (Section 601), it does
not contain any provisions for any maintenance, replacement,
sinking or analogous fund and, except as may be provided in
the applicable Prospectus Supplement, or a supplement thereto,
there will be no provisions for any such funds for the Bonds.
Security
General. Except as discussed below, securities
(including the Bonds) now or hereafter issued under the
Mortgage will be secured primarily by:
(a) first mortgage bonds issued under the Company's
Indenture of Mortgage and Deed of Trust, dated as of
August 1, 1940 (as amended and supplemented, the "1940
Indenture"), to The First National Bank of Chicago, as
trustee (the "1940 Indenture Trustee"), and delivered to
the Trustee under the Mortgage. As discussed under
"DESCRIPTION OF THE 1940 INDENTURE - Security," the 1940
Indenture constitutes, subject to certain exceptions, a
first mortgage lien on substantially all of the
properties of the Company except properties of Iowa
Southern at the time of the IE-ISU merger;
(b) first mortgage bonds issued under Iowa
Southern's Indenture or Deed of Trust, dated as of
February 1, 1923 (as amended and supplemented, the "ISU
1923 Indenture"), with The Northern Trust Company (The
First National Bank of Chicago, successor) (the "ISU
Corporate Trustee") and Harold H. Rockwell (Richard D.
Manella, successor) as trustees (the "ISU Indenture
Trustees"), and delivered to the Trustee under the
Mortgage; as discussed under "DESCRIPTION OF THE ISU 1923
INDENTURE - Security," the ISU 1923 Indenture
constitutes, subject to certain exceptions, a first
mortgage lien on substantially all of the properties
owned by Iowa Southern at the time of the IE-ISU merger
(which are now, subsequent to such merger, properties of
the Company); and
(c) the Lien of the Mortgage on the Company's
properties used in the generation, purchase,
transmission, distribution or sale of electric energy by
the Company, or in the manufacture of manufactured gas,
or in the purchase, transportation, distribution or sale
of manufactured gas or natural gas, or in the generation,
manufacture, distribution or sale of steam and hot water,
which lien is junior to the liens of the 1940 Indenture
and the ISU 1923 Indenture.
(Granting Clause First.)
As discussed below under "Class "A" Bonds," following a
merger or consolidation of another corporation into the
Company, or the transfer by another corporation of property to
the Company, the Company could issue and deliver to the
Trustee bonds issued under an existing mortgage on the
properties of such other corporation in lieu of or in addition
to bonds issued under the 1940 Indenture or the ISU 1923
Indenture. In such event, the securities (including the
Bonds) issued under the Mortgage would be secured,
additionally, by such bonds and by the lien of the Mortgage on
the properties of such other corporation, which would be
junior to the liens of the existing mortgage of such
corporation, the 1940 Indenture and the ISU 1923 Indenture.
The 1940 Indenture and the ISU 1923 Indenture and all such
other mortgages are hereinafter, collectively, called the
"Class "A" Mortgages," and all bonds outstanding under the
Class "A" Mortgages are hereinafter collectively called the
"Class "A" Bonds." If and when no Class "A" Mortgages are in
effect, the Mortgage will constitute a first mortgage lien on
all property of the Company subject thereto. (Sections 101
and 706)
Class "A" Bonds. Any Class "A" Bonds issued after the
date of the Mortgage (other than in substitution or exchange
for previously outstanding Class "A" Bonds) will be issued and
delivered to, and registered in the name of, the Trustee or
its nominee and will be owned and held by the Trustee, subject
to the provisions of the Mortgage, for the benefit of the
Holders of all securities issued under the Mortgage and
Outstanding from time to time. Class "A" Bonds issued as the
basis of authentication and delivery of securities under the
Mortgage (a) will mature on the same dates, and in the same
principal amounts, as such securities and (b) will contain, in
addition to any mandatory redemption provisions applicable to
all Class "A" Bonds Outstanding under the related Class "A"
Mortgage, mandatory redemption provisions correlative to
provisions for mandatory redemption, or for redemption at the
option of the Holder, of such securities. Class "A" Bonds
issued as the basis for authentication and delivery of a
series or tranche of securities under the Mortgage (x) may,
but need not, bear interest, any such interest to be payable
at the same times as interest on the securities of such series
or tranche and (y) may, but need not, contain provisions for
the redemption thereof at the option of the Company, any such
redemption to be made at a redemption price or prices not less
than the principal amount of such Class "A" Bonds. (Sections
402 and 701)
Any payment by the Company of principal of or premium or
interest on the Class "A" Bonds held by the Trustee will be
applied by the Trustee to the payment of any principal,
premium or interest, as the case may be, in respect of any
Mortgage securities which is then due and, to the extent of
such application, the obligation of the Company under the
Mortgage to make such payment in respect of such securities
will be deemed satisfied and discharged. If, at the time of
any such payment of principal of Class "A" Bonds, such payment
shall exceed the amount of principal then due in respect of
the securities, the excess of such payment will be deemed to
constitute Funded Cash and will be held by the Trustee as part
of the Mortgaged Property, to be withdrawn, used or applied as
provided in the Mortgage. If, at the time of any such payment
of premium or interest on Class "A" Bonds held by the Trustee,
such payment shall exceed the amount of premium or interest
then due in respect of such securities, the excess of such
payments will be remitted to the Company at its request. Any
payment by the Company of principal of or premium or interest
on any Mortgage securities authenticated and delivered on the
basis of the deposit with the Trustee of Class "A" Bonds
(other than by application of the proceeds of a payment in
respect of such Class "A" Bonds) will, to the extent thereof,
be deemed to satisfy and discharge the obligation of the
Company, if any, to make a payment of principal, premium or
interest, as the case may be, in respect of such Class "A"
Bonds which is then due. (Section 702; see "Withdrawal of
Cash" below.)
The Trustee may not sell, assign or otherwise transfer
any Class "A" Bonds held by the Trustee except to a successor
trustee under the Mortgage. (Section 704) At the time any
Mortgage securities of any series or tranche which have been
authenticated and delivered upon the basis of Class "A" Bonds
cease to be Outstanding (other than a result of the
application of the proceeds of the payment or redemption of
such Class "A" Bonds), the Trustee shall surrender to, or upon
the order of, the Company an equal principal amount of such
Class "A" Bonds having the same Stated Maturity and mandatory
redemption provisions as such securities. (Section 703)
At the date of this Prospectus, the only Class "A"
Mortgages are the 1940 Indenture and the ISU 1923 Indenture
and the only Class "A" Bonds issuable are first mortgage bonds
issuable thereunder. The Mortgage provides that in the event
of the merger or consolidation of another company with or into
the Company, an existing mortgage constituting a lien on
properties of such other company prior to the Lien of the
Mortgage may be designated by the Company as an additional
Class "A" Mortgage. Any bonds thereafter issued under such
additional mortgage would be Class "A" Bonds and (other than
in substitution or exchange for previously Outstanding Class
"A" Bonds) could be issued only to provide the basis for the
authentication and delivery of securities under the Mortgage.
(Section 706)
When no bonds are Outstanding under a Class "A" Mortgage
except for Class "A" Bonds held by the Trustee, then, at the
request of the Company and subject to satisfaction of certain
conditions, the Trustee will surrender such Class "A" Bonds
for cancellation and the related Class "A" Mortgage will be
satisfied and discharged; whereupon, the lien of such Class
"A" Mortgage on the property owned by the Company will cease
to exist and the Lien of the Mortgage will become a first
mortgage lien on such property, subject to Permitted Liens.
(Section 707)
So long as any securities are Outstanding under the
Mortgage, the Company will not (a) issue any additional Class
"A" Bonds except (i) to replace any mutilated, destroyed, lost
or stolen securities of the same series or to effect exchanges
and transfers of such securities or (ii) to the Trustee as the
basis for the authentication and delivery of securities or (b)
subject to the lien of any Class "A" Mortgage any property
which is excepted and excluded from, or not included in or
subject to, the lien of such Class "A" Mortgage. (Section
610) First mortgage bonds may be issued under the 1940
Indenture on the basis of property additions, retirements of
bonds previously issued under the 1940 Indenture and cash
deposited with the 1940 Indenture Trustee. (See "DESCRIPTION
OF THE 1940 INDENTURE - Issuance of Additional Bonds.") First
mortgage bonds may be issued under the ISU 1923 Indenture on
the basis of property additions, retirements of bonds
previously issued under the ISU 1923 Indenture and cash
deposited with the ISU Corporate Trustee. (See "DESCRIPTION
OF THE ISU 1923 INDENTURE - Issuance of Additional Bonds.")
Lien of the Mortgage. At the date of this Prospectus,
substantially all of the Company's property subject to the
Lien of the Mortgage is also subject to the prior lien of the
1940 Indenture or the ISU 1923 Indenture. Any Bonds offered
hereby will have the benefit of the first mortgage lien of the
1940 Indenture and the ISU 1923 Indenture on such property,
and the benefit of the prior lien of any additional Class "A"
Mortgage on any property subject thereto, to the extent of the
aggregate principal amount of Class "A" Bonds issued under the
respective Class "A" Mortgage and held by the Trustee.
The Lien of the Mortgage is subject to Permitted Liens
which include tax liens and other governmental charges which
are not delinquent or which can thereafter be paid without
penalty or which are being contested, construction and
materialmen's liens, certain judgment liens, easements,
reservations and rights of others (including governmental
entities) in, and defects of title in, certain property of the
Company, certain leasehold interests, liens on the Company's
pollution control and sewage and solid waste disposal
facilities which were previously financed with industrial
development revenue bonds and certain other liens and
encumbrances. (Granting Clauses and Section 101)
There are excepted from the Lien of the Mortgage, among
other things, cash and securities not paid, deposited or held
under the Mortgage; contracts, leases and other agreements of
all kinds, contract rights, bills, notes and other
instruments, accounts receivable, claims, judgments, certain
intellectual property rights and other general intangibles;
automobiles, aircraft and vessels; all goods, wares,
merchandise, equipment, spare parts, tools, materials,
supplies and fuel held for sale or lease in the ordinary
course of business or for use or consumption in, or in the
operation of, any properties of or for the benefit of the
Company; nuclear fuel; computers, machinery and equipment used
exclusively for corporate administrative or clerical purposes;
all gas, oil, minerals and timber, and rights thereto;
electric energy, gas, steam, water and other products
generated, produced or purchased; property installed on the
premises of customers of the Company and designed to aid in
conservation or efficient use of energy; leasehold interests
and leasehold improvements of the Company; and all property
which is located outside of the State of Iowa and is neither
specifically described in the Granting Clauses of the Mortgage
nor specifically subjected or required to be subjected to the
lien of the Mortgage by any provision thereof. (Granting
Clauses)
Without the consent of the Holders, the Company and the
Trustee may enter into supplemental indentures to subject to
the Lien of the Mortgage additional property (including
property which would otherwise be excepted from such Lien).
(Section 1401) Such property, so long as the same would
otherwise constitute Property Additions, would thereupon
constitute Property Additions and be available as a basis for
the issuance of securities under the Mortgage. (See "Issuance
of Additional Securities" below.) Property Additions
generally include any unit or element of property which is
owned by the Company and is subject to the Lien of the
Mortgage except (i) any property, the cost of acquisition or
construction of which is property chargeable to an operating
expense account of the Company and (ii) goodwill, going
concern value rights and intangible property, unless the cost
thereof is included in the cost of such unit or element of
property and no separate consideration was paid or apportioned
therefor, in which case Property Additions may include such
goodwill, going concern rights and intangible property.
(Section 103)
The Mortgage contains provisions subjecting after-
acquired property (other than Excepted Property) to the Lien
thereof. These provisions are limited in the case of
consolidation or merger or sale of substantially all of the
Company's assets. In the event of consolidation or merger or
the transfer of all of the Mortgaged Property as or
substantially as an entirety, the Mortgage will not be
required to be a lien upon any of the properties then owned or
thereafter acquired by the successor corporation except
properties acquired from the Company in or as a result of such
transaction and properties which are an integral part of, or
essential to the use or operation of, any Mortgaged Property,
and renewals, replacements and substitutions of or for any
part thereof. (Article Thirteen; see "Consolidation, Merger,
Conveyance, Transfer or Lease" below.) In addition, after-
acquired property may be subject to vendors' liens, purchase
money mortgages and other liens thereon at the time of
acquisition thereof, including the lien of any Class "A"
Mortgage.
The Mortgage provides that the Trustee will have a lien,
prior to the lien on behalf of the holders of securities
issued under the Mortgage, upon Mortgaged Property, for the
payment of its reasonable compensation and expenses and for
indemnity against certain liabilities. (Section 1107)
Issuance of Additional Securities
The maximum principal amount of securities which may be
issued under the Mortgage is unlimited. (Section 301) Under
the Mortgage, securities of any series may be issued from time
to time on the basis of, and in an aggregate principal amount
not exceeding:
(1) the aggregate principal amount of Class "A" Bonds
issued and delivered to the Trustee for such purpose;
(2) 75% of the Cost or fair value (whichever is less) of
Property Additions (as described below) which do not
constitute Funded Property (generally, Funded Property
includes Property Additions which have been made, or deemed to
have been made, the basis of the authentication and delivery
of securities, the release of Mortgaged Property from the Lien
of the Mortgage or cash withdrawals, or which have been
substituted for retired property), after certain deductions
and additions, primarily including adjustments to offset
property retirements;
(3) the aggregate principal amount of Retired Securities
(which consist of securities no longer outstanding under the
Mortgage which have not been used for certain other purposes
under the Mortgage and which are not to be paid, redeemed,
purchased or otherwise retired by the application thereto of
Funded Cash) or Retired Prior Lien Bonds; and
(4) the amount of cash deposited with the Trustee.
(Article Four)
The Company is not required to satisfy a net earnings
requirement prior to the issuance of securities under the
Mortgage.
Unless otherwise provided in the applicable Prospectus
Supplement, or supplement thereto, the Company will issue the
Bonds on the basis of Class "A" Bonds issued under the 1940
Indenture. (See "DESCRIPTION OF THE 1940 INDENTURE - Issuance
of Additional Bonds" for a description of the requirements for
the issuance of bonds under the 1940 Indenture, which
requirements are generally more restrictive than those for the
issuance of securities under the Mortgage.)
Release of Property
Unless an Event of Default (hereinafter defined) shall
have occurred and be continuing, the Company may obtain the
release from the Lien of the Mortgage of any Funded Property,
except for cash held by the Trustee, upon delivery to the
Trustee of cash equal in amount to the amount, if any, that
the Cost of the property to be released (or, if less, the fair
value of such property at the time it became Funded Property)
exceeds the aggregate of:
(1) the principal amount, subject to certain
limitations, of obligations secured by purchase money
mortgages upon the property to be released delivered to
the Trustee;
(2) the Cost or fair value (whichever is less) of
certified Property Additions not constituting Funded
Property after certain deductions and additions,
primarily including adjustments to offset property
retirements (except that such adjustments need not be
made if such Property Additions were acquired or made
within the 90-day period preceding the request for such
release);
(3) an amount equal to 133-1/3% of the aggregate
principal amount of securities the Company would be
entitled to issue on the basis of Retired Securities or
Retired Prior Lien Bonds (with such entitlement being
waived by operation of such release);
(4) the amount of cash deposited with, or the
principal amount of obligations secured by purchase money
mortgages upon the property released and delivered to,
the Trustee or other holder of a lien prior to the Lien
of the Mortgage;
(5) an amount equal to 133-1/3% of the aggregate
principal amount of securities Outstanding under the
Mortgage and delivered to the Trustee (with such
Securities to be canceled by the Trustee); and
(6) any taxes and expenses incidental to any sale,
exchange, dedication or other disposition of the property
to be released.
(Section 803)
Unless an Event of Default shall have occurred and be
continuing, property which is not Funded Property may
generally be released from the Lien of the Mortgage without
depositing any cash or property with the Trustee as long as
(a) the aggregate amount of Cost or fair value (whichever is
less) of all Property Additions which do not constitute Funded
Property (excluding the property to be released) after certain
deductions and additions, primarily including adjustments to
offset property retirements, is not less than zero or (b) the
Cost or fair value (whichever is less) of property to be
released does not exceed the aggregate amount of the Cost or
fair value (whichever is less) of Property Additions acquired
or made within the 90-day period preceding the release.
(Section 804)
The Mortgage provides simplified procedures for the
release of property which has been released from the lien of
Class "A" Mortgages, minor properties and property taken by
eminent domain, and provides for dispositions of certain
obsolete property and grants or surrender of certain rights
without any release or consent by the Trustee.
If any property released from the Lien of Mortgage
continues to be owned by the Company after such release, the
Mortgage will not become a Lien on any improvement, extension
or addition to such property or renewals, replacements or
substitutions of or for any part or parts of such property.
(Article Eight)
Withdrawal of Cash
Subject to certain limitations, unless an Event of
Default shall have occurred and be continuing, cash held by
the Trustee may (1) be withdrawn by the Company (a) to the
extent of the Cost or fair value (whichever is less) of
Property Additions not constituting Funded Property, after
certain deductions and additions, primarily including
adjustments to offset retirements or (b) in an amount equal to
133-1/3% of the aggregate principal amount of securities that
the Company would be entitled to issue under the Mortgage on
the basis of Retired Securities or Retired Prior Lien Bonds
(with the entitlement to such issuance being waived by
operation of such withdrawal) or (c) in an amount equal to 133-
1/3% of the aggregate principal amount of any securities
Outstanding under the Mortgage and issued under the Mortgage
and delivered to the Trustee, or (2) upon the request of the
Company, be applied to (a) the purchase of securities issued
under the Mortgage (at prices not exceeding 133-1/3% of the
principal amount thereof) or (b) the redemption or payment at
Stated Maturity of securities issued under the Mortgage (with
any securities received by the Trustee pursuant to these
provisions being canceled by the Trustee) (Section 806);
provided, however, that cash deposited with the Trustee as the
basis for the authentication and delivery of securities, as
well as cash representing a payment of principal of Class "A"
Bonds, may only be withdrawn in an amount equal to the
aggregate principal amount of securities the Company would be
entitled to issue under the Mortgage on any basis (with the
entitlement to such issuance being waived by operation of such
withdrawal), or may, upon the request of the Company, be
applied to the purchase redemption or payment of securities
issued under the Mortgage at prices not exceeding, in the
aggregate, the principal amount thereof. (Sections 405 and
702)
Consolidation, Merger, Conveyance, Transfer or Lease
The Company may not consolidate with or merge into any
other corporation or convey, transfer or lease the Mortgaged
Property as or substantially as an entirety to any Person
unless (a) such transaction is on such terms as will fully
preserve in all material respects the Lien and security of the
Mortgage and the rights and powers of the Trustee and the
Holders and (b) the corporation formed by such consolidation
or into which the Company is merged or the Person which
acquires by conveyance or other transfer, or which leases, the
Mortgaged Property as or substantially as an entirety is a
corporation organized and existing under the laws of the
United States of America, any State or Territory thereof or
the District of Columbia, and such corporation executes and
delivers to the Trustee a supplemental indenture, which
contains an assumption by such corporation of the Company's
obligations under the Mortgage and which contains a grant,
conveyance, transfer and mortgage by such corporation
confirming the Lien of the Mortgage on the Mortgaged Property
and subjecting to such Lien all property thereafter acquired
by such corporation which shall constitute an integral part,
or be essential to the use or operation of, any Mortgage
Property or a renewal, replacement or substitution of or for
any part thereof. (Section 1301)
Modification of the Mortgage
Without the consent of any Holders, the Company and the
Trustee may enter into one or more supplemental indentures for
certain purposes, including any of the following:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company in the Mortgage and in the
securities; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for
the benefit of the Holders of, or to remain in effect
only so long as there shall be outstanding, securities
issued under the Mortgage of one or more specified
series, or one or more tranches thereof, or to surrender
any right or power conferred upon the Company by the
Mortgage; or
(c) to correct or amplify the description of any
property at any time subject to the Lien of the Mortgage,
or to subject to the Lien of the Mortgage additional
property; or
(d) to change or eliminate any provision of the
Mortgage or to add any new provision to the Mortgage,
provided that, if such change, elimination or addition
adversely affects the interests of the Holders of the
securities of any series or tranche in any material
respect, such change, elimination or addition will become
effective with respect to such series or tranche only
when no security of such series or tranche remains
Outstanding under the Mortgage; or
(e) to establish the form or terms of the
securities of any series or tranche as permitted by the
Mortgage; or
(f) to cure any ambiguity, to correct or supplement
any provision therein which may be defective or
inconsistent with any other provision therein, or to
comply with the rules or regulations of any national
securities exchange on which any of the securities issued
under the Mortgage may be listed, or to change, alter,
modify, vary or eliminate any of the provisions thereof
or to add other provisions to the Mortgage, so long as
such other changes, alterations, modifications,
variations, eliminations or additions do not adversely
affect the interests of the Holders of securities of any
series or tranche in any material respect, unless they
are expressly stated to become effective only as to
securities which are not then Outstanding.
Without limiting the generality of the foregoing, if the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), is amended after the date of the Mortgage in such a way
as to require changes to the Mortgage or the incorporation
therein of additional provisions or so as to permit changes
to, or the elimination of, provisions which, at the date of
the Mortgage or at any time thereafter, were required by the
Trust Indenture Act to be contained in the Mortgage, the
Company and the Trustee may, without the consent of any
Holders, enter into one or more supplemental indentures to
evidence or effect such amendments. (Section 1401)
For most purposes not described above, the consent of the
Holders of not less than a majority in aggregate principal
amount of the securities of all affected series then
Outstanding under the Mortgage is required for the purpose of
amending or modifying the Mortgage pursuant to one or more
supplemental indentures; provided, however, that no such
amendment or modification may, without the consent of each
Holder of the Outstanding securities of each series or tranche
directly affected thereby, (a) change the Stated Maturity of
the principal of, or any installment of principal of or
interest on, any security issued under the Mortgage, or reduce
the principal amount thereof or the rate of interest thereon
(or the amount of any installment of interest thereon) or
change the method of calculating such rate or reduce any
premium payable upon the redemption thereof, or impair the
right to institute suit for the enforcement of any such
payment on or after the maturity thereof, (b) permit the
creation of any Lien ranking prior to the Lien of the Mortgage
with respect to all or substantially all of the Mortgaged
Property or terminate the Lien of the Mortgage, or (c) reduce
the percentage in principal amount of the Outstanding
securities of such series or tranche, the consent of the
Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required
for any waiver of compliance with any provision of the
Mortgage or of any default thereunder and its consequences, or
reduce the requirements for quorum or voting. A supplemental
indenture which changes or eliminates any covenant or other
provision of the Mortgage which has expressly been included
solely for the benefit of the Holders of, or which is to
remain in effect only so long as there shall be Outstanding
securities of one or more specified series, or one or more
tranches thereof, or modifies the rights of the Holders of
securities such series or tranches with respect to such
covenants or other provision, will not be deemed to affect the
rights under the Mortgage of Holders of the securities of any
other series or tranche. (Section 1402)
Waiver
The Holders of at least a majority in aggregate principal
amount of all affected Outstanding securities issued under the
Mortgage may waive the Company's obligations to comply with
certain covenants of the Mortgage, provided that such waiver
occurs before the time such compliance is required. (Section
609)
Events of Default
Each of the following events constitutes an Event of
Default under the Mortgage:
(1) failure to pay interest on any security issued
under the Mortgage within 90 days after the same becomes
due;
(2) failure to pay principal or premium, if any, on
any security issued under the Mortgage within three
business days after its due date;
(3) failure to perform or breach of any covenant or
warranty of the Company in the Mortgage (other than as
referred to in (1) or (2) above) for a period of 90 days
after there has been given to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at
least 30% in principal amount of Outstanding securities
issued under the Mortgage, a written notice specifying
such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default,"
unless the Trustee, or the Trustee and the Holders of a
principal amount of securities not less than the
principal amount of securities the Holders of which gave
such notice, as the case may be, agree in writing to an
extension of such period prior to its expiration;
provided, however, that the Trustee, or the Trustee and
such Holders, as the case may be, will be deemed to have
agreed to an extension of such period if corrective
action has been initiated by the Company within such
period and is being diligently pursued;
(4) certain events relating to reorganization,
bankruptcy and insolvency of the Company and appointment
of a receiver or trustee for its property; and
(5) the occurrence of a matured event of default
under any Class "A" Mortgage; provided that the waiver or
cure of any such event of default and the rescission and
annulment of the consequences thereof shall constitute a
waiver of the corresponding Event of Default under the
Mortgage and a rescission and annulment of the
consequences thereof.
(Section 1001)
The Trust Indenture Act currently requires that the
Company give the Trustee, not less often than annually, a
brief statement as to the Company's compliance with the
conditions and covenants under the Mortgage.
Remedies
If an Event of Default occurs and is continuing, then the
Trustee or the Holders of not less than a majority in
principal amount of securities then Outstanding under the
Mortgage may declare the principal amount (or if the
securities are Discount Securities, such portion of the
principal amount as may be provided for such Discount
Securities pursuant to the terms of the Mortgage) of all of
the securities Outstanding under the Mortgage together with
premium, if any, and interest accrued, if any, thereon to be
immediately due and payable. At any time after such
declaration of the maturity of the securities then
Outstanding, but before the sale of any of the Mortgaged
Property and before a judgment or decree for payment of money
shall have been obtained by the Trustee as provided in the
Mortgage, the Event or Events of Default giving rise to such
declaration of maturity will, without further act, be deemed
to have been waived, and such declaration and its consequences
will, without further act, be deemed to have been rescinded
and annulled, if
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(1) all overdue interest, if any, on all securities
then Outstanding under the Mortgage;
(2) the principal of and premium, if any, on any
securities then Outstanding under the Mortgage which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such securities; and
(3) all amounts due to the Trustee as compensation
and reimbursement as provided in the Mortgage; and
(b) any other Event or Events of Default other than the
non-payment of the principal of securities which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in the Mortgage.
(Sections 1002 and 1017)
The Mortgage provides that, under certain circumstances
and to the extent permitted by law, if an Event of Default
occurs and is continuing, the Trustee has the power to take
possession of, and to hold, operate and manage, the Mortgaged
Property, or with or without entry, sell the Mortgaged
Property. If the Mortgaged Property is sold, whether by the
Trustee or pursuant to judicial proceedings, the principal of
the securities Outstanding under the Mortgage, if not
previously due, will become immediately due, together with
premium, if any, and any accrued interest (including interest
upon overdue installments of interest at the same rates
respectively as were born by the respective securities on
which installments of interest were overdue). (Sections 1003,
1004 and 1005)
If an Event of Default occurs and is continuing, the
Holders of a majority in principal amount of the securities
then Outstanding under the Mortgage will have the right to
direct the time, method and place of conducting any
proceedings for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee,
provided that (a) such direction does not conflict with any
rule of law or with the Mortgage, and could not involve the
Trustee in personal liability in circumstances where indemnity
would not, in the Trustee's sole discretion, be adequate and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such discretion.
(Section 1016)
The Mortgage provides that no Holder of any security will
have any right to institute any proceeding, judicial or
otherwise, with respect to the Mortgage for the appointment of
a receiver or for any other remedy thereunder unless (a) such
Holder has previously given to the Trustee written notice of a
continuing Event of Default; (b) the Holders of not less than
a majority in aggregate principal amount of the securities
then Outstanding under the Mortgage have made written request
to the Trustee to institute proceedings in respect of such
Event of Default and have offered the Trustee reasonable
indemnity against costs and liabilities incurred in complying
with such request; and (c) the Trustee has refused, or for
sixty days after receipt of such Notice, the Trustee has
failed, to institute any such proceeding and no direction
inconsistent with such request has been given to the Trustee
by the Holders of a majority in aggregate principal amount of
securities then Outstanding under the Mortgage. Furthermore,
no Holder will be entitled to institute any such action if and
to the extent that such action would disturb or prejudice the
rights of the other Holders. (Section 1011)
Notwithstanding that the right of a Holder to institute a
proceeding with respect to the Mortgage is subject to certain
conditions precedent, each Holder of a security has the right,
which is absolute and unconditional, to receive payment of the
principal of and premium, if any, and interest (including
interest upon overdue interest), if any, on such security when
due and to institute suit for the enforcement of any such
payment, and such rights may not be impaired without the
consent of such Holder. (Section 1012)
The Mortgage obligates the Trustee to give the Holders
notice of any default under the Mortgage to the extent
required by the Trust Indenture Act, unless such default shall
have been cured or waived, except that no such notice to
Holders of a default of the character described in paragraph
(3) under "Event of Default" shall be given until at least 60
days after the occurrence thereof. (Section 1102) The Trust
Indenture Act currently permits the Trustee to withhold
notices of default (except for certain payment defaults) if
the Trustee in good faith determines the withholding of such
notice to be in the interests of the Holders.
As a condition precedent to certain actions by the
Trustee in the enforcement of the Lien of Mortgage and
institution of action on the securities Outstanding under the
Mortgage, the Trustee may require adequate indemnity against
costs, expenses and liabilities to be incurred in connection
therewith. (Sections 1011 and 1101)
In addition to every other right and remedy provided in
the Mortgage, the Trustee may exercise any right or remedy
available to the Trustee in its capacity as owner and Holder
of Class "A" Bonds which arises as a result of a default or
matured event of default under any Class "A" Mortgage, whether
or not an Event of Default under the Mortgage has occurred and
is continuing. (Section 1020)
Defeasance
Upon request of the Company, any securities Outstanding
under the Mortgage, or any portion of the principal amount
thereof, will be deemed to have been paid for purposes of the
Mortgage, and the entire indebtedness of the Company in
respect thereof will be deemed to have been satisfied and
discharged, if there has been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust: (a) money in the amount which will be sufficient, or
(b) Eligible Obligations (as described below), which do not
contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide monies which,
together with the money, if any, deposited with or held by the
Trustee, will be sufficient, or (c) a combination of (a) and
(b) which will be sufficient, to pay when due the principal of
and premium, if any, and interest, if any, due and to become
due on such securities or portions thereof. (Section 901) For
this purpose, Eligible Obligations include direct obligations
of, or obligations unconditionally guaranteed by, the United
States of America, entitled to the benefit of the full faith
and credit thereof, and certificates, depositary receipts or
other instruments which evidence a direct ownership interest
in such obligations or in any specific interest or principal
payments due in respect thereof.
While the Company knows of no legal precedent on point,
it is possible that, for federal income tax purposes, any
deposit contemplated in the preceding paragraph could be
treated as a taxable exchange of the related securities for an
issue of obligations of the trust or a direct interest in the
cash and securities held in the trust. In that case, Holders
of such securities would recognize gain or loss as if the
trust obligations or the cash or securities deposited, as the
case may be, had actually been received by them in exchange
for their securities. In addition, such Holders thereafter
would be required to recognize for federal income tax purposes
a share of the income, gain or loss of the trust. The amount
so required to be recognized could be different from the
amount that would be recognized in the absence of such
deposit. Prospective investors are urged to consult their own
tax advisors as to the specific consequences to them of any
such deposit.
Resignation of the Trustee
The Trustee may resign at any time by giving written
notice thereof to the Company or may be removed at any time by
act of the Holders of a majority in principal amount of
securities then Outstanding delivered to the Trustee and the
Company. No resignation or removal of the Trustee and no
appointment of a successor trustee will become effective until
the acceptance of appointment by a successor trustee in
accordance with the requirements of the Mortgage. So long as
no Event of Default or event which, after notice or lapse of
time, or both, would become an Event of Default has occurred
and is continuing, if the Company has delivered to the Trustee
a resolution of its Board of Directors appointing a successor
trustee and such successor has accepted such appointment in
accordance with the terms of the Mortgage, the Trustee will be
deemed to have resigned and the successor will be deemed to
have been appointed as trustee in accordance with the
Mortgage. (Section 1110)
More Restrictive Provisions of Class "A" Mortgages
The Mortgage is less restrictive upon the Company in
certain respects than is either the 1940 Indenture or the ISU
1923 Indenture, but the Class "A" Bonds issued under either of
those indentures and delivered to the Trustee will be entitled
to the benefits of more restrictive provisions of those
indentures (see "DESCRIPTION OF THE 1940 INDENTURE" and
"DESCRIPTION OF THE ISU 1923 INDENTURE" below). However,
pursuant to the Mortgage, the Trustee, as holder of the Class
"A" Bonds, will vote such Class "A" Bonds in favor of certain
amendments to the 1940 Indenture and ISU 1923 Indenture.
(Section 705; see "Voting of Class "A" Bonds" under each of
"DESCRIPTION OF THE 1940 INDENTURE" and "DESCRIPTION OF THE
ISU 1923 INDENTURE" below).
Relationship with the Trustee
The Trustee or an affiliate provides general banking
services to the Company including (i) acting as a depositary
for certain Company funds and (ii) issuing a $5,000,000 line
of credit to the Company. As of September 30, 1995, the line
of credit was being used to support commercial paper.
Additionally, the Trustee has a $65,000,000 credit agreement
with the lessor of the Company's nuclear fuel supporting the
Company's nuclear fuel lease.
The Trustee is also the 1940 Indenture Trustee, the ISU
1923 Corporate Trustee and the Subordinated Indenture Trustee
(each as defined below). As such, the Trustee would have a
conflicting interest for purposes of the Trust Indenture Act
if an Event of Default were to occur under the 1940 Indenture,
the ISU 1923 Indenture or the Subordinated Indenture. In any
such case, the Trustee may be required to eliminate such
conflicting interest by resigning as the Trustee, the 1940
Indenture Trustee, the ISU 1923 Corporate Trustee or the
Subordinated Indenture Trustee. There are other instances
under the Trust Indenture Act which would require the
resignation of the Trustee, such as an affiliate of the
Trustee acting as underwriter with respect to any of the
Securities.
DESCRIPTION OF THE 1940 INDENTURE
General
The summaries of the 1940 Indenture set forth below do
not purport to be complete and are subject to the detailed
provisions of the 1940 Indenture, a copy of which was
previously filed with the Commission, is listed as an exhibit
to the Registration Statement of which this Prospectus is a
part, and is incorporated herein by reference. Capitalized
terms used in this section which are not otherwise defined in
this Prospectus shall have the meanings ascribed to them in
the 1940 Indenture. Wherever particular provisions or terms
defined in the 1940 Indenture are referred to herein, such
provisions or definitions are incorporated by reference as
part of the statements made herein, and such statements are
qualified in their entirety by such reference. References to
article and section numbers in this section, unless otherwise
indicated, are references to article and section numbers of
the 1940 Indenture.
Security
The 1940 Indenture constitutes a direct first mortgage
lien on substantially all of the property and franchises of
the Company (other than expressly excepted property and other
than properties owned by Iowa Southern at the time of the IE-
ISU merger on December 31, 1993), subject only to permitted
encumbrances and liens. Substantially all property and
franchises (other than expressly excepted property) hereafter
acquired by the Company will become subject to the lien of the
1940 Indenture, subject only to permitted liens and
encumbrances and liens and encumbrances, if any, existing or
placed on such after-acquired property at the time of
acquisition thereof. The lien of the 1940 Indenture on the
property owned by Iowa Southern at the time of the IE-ISU
merger, and extensions and additions appurtenant to such
property, are junior to the lien of the ISU 1923 Indenture.
The 1940 Indenture excepts from the lien thereof all
cash, securities, contracts, and bills, notes and accounts
receivable acquired in the ordinary course of business which
are not specifically pledged under the 1940 Indenture and all
tangible personal property purchased or held for sale in the
ordinary course of business or consumable in the operation of
the plants or system of the Company, automobiles, buses,
trucks and similar vehicles. (Granting Clauses)
Any bonds issued under the 1940 Indenture as the basis
for the issuance of Bonds under the Mortgage will be secured
equally and ratably with the bonds of all other series then
outstanding under the 1940 Indenture.
Effect of the IE-ISU Merger on the 1940 Indenture
The merger of IE and ISU did not impair the lien of the
1940 Indenture or any of the rights or powers of the 1940
Indenture Trustee or the bondholders under the 1940 Indenture.
(Section 133) Subsequent to that merger, the Company became
the successor to IE under the 1940 Indenture.
Issuance of Additional Bonds
The 1940 Indenture does not fix an overall limitation on
the aggregate principal amount of the bonds of all series that
may be issued or outstanding thereunder. (Section 3)
Generally, additional bonds of any series may be issued,
subject to the provisions of the 1940 Indenture, in a
principal amount equal to:
(a) 60% of Net Bondable Additions not previously
utilized under the 1940 Indenture resulting from the
acquisition by purchase, construction or otherwise of
Property Additions (Article IV);
(b) the principal amount of bonds, previously
authenticated under the 1940 Indenture, which have been
retired or for the retirement of which the 1940 Indenture
Trustee holds the necessary funds, other than bonds
redeemed through the operation of cash sinking funds and
other than retired bonds used to satisfy the maintenance
and renewal provisions of the 1940 Indenture (Article
VI); or
(c) the amount of cash deposited with the 1940
Indenture Trustee as the basis for the issuance of such
bonds, which cash may be applied to the retirement of
bonds or may be withdrawn in lieu of the authentication
of an equal principal amount of bonds to whose
authentication and delivery the Company would be entitled
under the provisions referred to in clauses (a) and (b).
(Article V)
No such bonds in any event may be issued under (a) or
(c), or under (b) if the bonds to be issued bear a higher rate
of interest than that borne by the bonds retired or being
retired (except in case such bonds mature within 2 years),
unless (i) the Net Earnings of the Company for a 12 months'
period within the immediately preceding 15 months' period
shall have been at least equal to two times the aggregate
amount of annual interest charges on all bonds then
outstanding under the 1940 Indenture, including the bonds then
applied for, and (ii) at least 85% of such required minimum
amount of Net Earnings consists of Net Operating Revenues from
the Public Utility Property of the Company. (Articles IV, V,
and VI)
Bonds issuable under the 1940 Indenture are available as
the basis for the issuance of securities under the Mortgage.
As of September 30, 1995, on the basis of the most restrictive
provisions described above, the Company would have been
entitled to issue an aggregate of at least $149 million of
additional bonds under the 1940 Indenture.
Acquisition of Property Subject to Prior Liens
The 1940 Indenture prohibits the Company from acquiring
any property subject to a prior lien, or placing any prior
lien on property at the time of acquisition thereof, if either
the principal amount of indebtedness secured by prior liens on
such property exceeds 60% of the cost or the fair value of
such property, whichever shall be less, or the Net Earnings of
the Company for a period of 12 months within the 15 months
immediately preceding the month in which the property is to be
acquired shall not have been at least equal to two times the
aggregate amount of the annual interest charges on the Secured
Bonded Debt of the Company; provided, however, that if the Net
Earnings of the Company for the above-stated period shall have
been at least equal to three times the aggregate amount of the
annual interest charges on the Secured Bonded Debt of the
Company, then the 60% limitation shall not apply. In the case
of each of the foregoing Net Earnings requirements, such Net
Earnings must consist of Net Operating Revenues from Public
Utility Property to an extent at least equal to 85% of two or
three times, as the case may be, the said aggregate amount of
annual interest charges. (Section 83)
Maintenance and Renewal
The 1940 Indenture provides that the Company will, for
each year, pay or cause to be paid to the Trustee, an amount
in cash, as and for a renewal fund, equal to 2-1/2% (or such
different percentage as may be fixed upon certification by an
independent engineer that such change in percentage rate is
desirable and justified) of the average gross book value
during such year of all of the depreciable tangible Public
Utility Property of the Company (with certain specified
exceptions). The percentage is currently set at 2-1/2%. The
Company's obligation to pay such amount to the Trustee in cash
may at the option of the Company be satisfied in whole or in
part by the certification of unused Gross Bondable Additions
or the certification of unused bond retirements, or both.
(Section 74)
The 1940 Indenture also provides (i) that the Company
shall maintain the mortgaged properties in good repair and
working order; (ii) that the Company, upon written request
served upon it and the Trustee by the holders of at least 25%
in principal amount of the bonds outstanding, shall cause such
properties to be inspected by an independent engineer (not
more often than at five-year intervals) to determine whether
they have been so maintained and whether any property, not
retired on the books, should be so classified for the purpose
(among others) of computing Net Bondable Additions; and (iii)
that the Company shall make good any deficiency in maintenance
disclosed by such engineer's report as rendered or as modified
by arbitration. (Section 73)
Limitations on Dividends on Common Stock
The 1940 Indenture prohibits the Company from declaring
or paying any dividends (except stock dividends or dividends
paid out of the proceeds of sale of stock), or making other
distributions on, or acquisitions of, stock unless immediately
after such dividend, distribution or acquisition the net
income of the Company available for dividends (as defined),
for the period from December 31, 1945, to and including the
date of such dividend, distribution or acquisition, plus the
sum of $250,000 shall at least equal all payments made in
respect of all such dividends, distributions or acquisitions
during said period; provided that such restriction shall not
apply to the acquisition of stock out of the proceeds from the
sale of, or in exchange for, any other shares of stock or
securities representing an equity interest subordinate to all
debts, secured or unsecured. (Section 85) Giving effect to
the use of the proceeds of the Securities offered hereby,
retained earnings are not restricted under this provision.
Modification of the 1940 Indenture
In general, modifications or alterations of the 1940
Indenture and indentures supplemental thereto and of the
rights and obligations of the Company and of the holders of
the bonds may, with the approval of the Company, be made at a
meeting of bondholders upon the affirmative vote of the
holders of 75% or more of the aggregate principal amount of
the bonds entitled to vote with respect to the matter
involved, but no such modifications or alterations are
permitted with respect to certain basic matters, such as terms
of payment of principal or interest on the bonds or the
creation of liens ranking prior to, or on a parity with, the
lien of the 1940 Indenture. (Section 167) (See "Voting of
Class "A" Bonds" below.)
Defaults and Notice Thereof
Defaults under the 1940 Indenture are defined in
substance as being (a) failure to pay principal or any
installment of interest on any bond on the due date; (b)
failure to observe any covenant or condition prescribed by the
provisions of any sinking fund created for the benefit of
bonds of any series; (c) failure to perform any other covenant
or agreement of the 1940 Indenture, which failure shall
continue for a period of 60 days after a written demand that
such failure be cured has been mailed to the Company by the
Trustee or to the Company by the holders of 15% in principal
amount of the bonds; (d) certain events relating to
reorganization, bankruptcy and insolvency of the Company or
the appointment of a receiver or trustee of the Company's
property; (e) final judgment in excess of $100,000 against the
Company which is not discharged or stayed within 30 days; or
(f) the assumption by any governmental agency or any court at
the instance of any governmental agency of custody of the
whole or any substantial part of the Trust Estate or of
control over the Company's affairs or operations to the
exclusion of management by the Company. (Section 105)
Upon the occurrence of a Default, the 1940 Indenture
Trustee may, and upon request of the holders of a majority in
principal amount of the bonds shall (and the holders of at
least 25% in principal amount of the bonds may, by notice in
writing to the Company), declare the principal of and interest
on all the bonds to be immediately due and payable. (Section
107)
The 1940 Indenture Trustee is required to give notice of
any Default to holders of bonds whose names are on file with
it within 90 days after the occurrence of a Default known to
it, unless such Default has been cured prior to the giving of
such notice and except that such notice may be withheld, other
than as to a Default in payment of principal or interest or of
any installment of any sinking fund, if the 1940 Indenture
Trustee determines in good faith that such withholding is in
the interest of the holders of bonds. (Section 106)
The holders of not less than a majority in principal
amount of bonds then outstanding may direct the time, method
and place of conducting any proceeding for any remedy
available to the 1940 Indenture Trustee, or exercise any trust
or power conferred upon the 1940 Indenture Trustee. (Section
110)
The Company must file an annual Certificate with the 1940
Indenture Trustee as to compliance with the conditions and
covenants of the 1940 Indenture and as to the absence of
default with respect to any of the covenants contained in the
1940 Indenture. (Section 103)
Voting of Class "A" Bonds
The Trustee will, as holder of any Class "A" Bonds issued
under the 1940 Indenture, attend such meetings of bondholders
under the 1940 Indenture, or deliver its proxy in connection
therewith, as relate to matters with respect to which it is
entitled to vote or consent. The Mortgage provides that, so
long as no Event of Default as defined in the Mortgage has
occurred or is continuing, the Trustee will, as holder of such
Class "A" Bonds, vote or consent:
(a) in favor of amendments or modifications to the 1940
Indenture of substantially the same tenor and effect as the
following, together with all amendments and modifications
required to effectuate the following:
(i) to provide that, whenever the 1940
Indenture requires authorization by, or a
resolution of, the Board of Directors for the
issuance of a series of bonds or the
determination of the terms thereof, the
requirement shall be satisfied if the action
taken would be sufficient for the issuance of a
series of bonds, or the determination of the
terms thereof, under the Mortgage;
(ii) to eliminate the renewal fund and to
provide that, to the extent Property Additions
have been taken as a credit, or cash held by
the Trustee has been deposited, to satisfy the
renewal fund requirements (or to satisfy any
sinking fund requirement which is no longer in
effect), such Property Additions and cash may
be used for any purpose under the 1940
Indenture (including as a basis for the
issuance of bonds) as if they had never been so
credited or deposited;
(iii) to permit bonds to be issued in a
principal amount equal to 75%, instead of 60%,
of Net Bondable Additions;
(iv) to eliminate the Net Earnings requirements
for all purposes, including in connection with
the issuance of bonds;
(v) to broaden the definition of "Property
Additions" to include all tangible property
owned by the Company and subject to the lien of
the 1940 Indenture;
(vi) to eliminate the restrictions on the
payment of dividends on, or the making of other
distributions on, or acquisitions of, stock;
(vii) to eliminate most restrictions on
purchase money obligations which may be
received as consideration for the release of
property from the lien of the 1940 Indenture;
(viii) to permit the release, without
compliance with other provisions of the 1940
Indenture, of any property provided that (1)
the release will not impair the electric
business of the Company in contravention of the
provisions of the 1940 Indenture and (2) the
fair value of property released pursuant to
this provision, together with the fair value of
all other property so released in the then
current calendar year, shall not exceed the
greater of $5,000,000 and 3% of the aggregate
principal amount of bonds then outstanding
under the 1940 Indenture;
(ix) to modify release provisions to delete the
requirement that the property to be released
shall "no longer be useful, necessary,
profitable or advantageous in the judicious
management and maintenance of the Trust Estate
or in the conduct of the business of the
Company" and substituting therefor the
requirement that the release of the property
would not adversely affect the Company's
electric business;
(x) to permit the withdrawal by the Company,
without compliance with other provisions of the
1940 Indenture, of cash in an amount, together
with other amounts paid over to the Company
pursuant to this provision in the then current
calendar year, up to the greater of $5,000,000
and 3% of the aggregate principal amount of the
bonds then outstanding under the 1940
Indenture; provided that such cash must be
expended for Property Additions;
(xi) to increase the amount of cash
withdrawable by the Company on the basis of
retired bonds from 100% of the principal amount
of such bonds to 133-1/3% of such principal
amount;
(xii) to eliminate most restrictions on the
acquisition of property subject to a prior
lien;
(xiii) to limit the insurance coverage that
must be maintained by the Company to fire
insurance only and to raise the minimum dollar
amount of any one fire loss which must be
payable to the 1940 Indenture Trustee from
$10,000 to an amount equal to the greater of
$5,000,000 and 3% of the aggregate principal
amount of bonds then outstanding under the 1940
Indenture;
(xiv) to modify the definition of
"Defaults" under the 1940 Indenture to be
substantially the same as "Events of Default"
under the Mortgage;
(xv) to modify the provisions of the 1940
Indenture for the acceleration of the maturity
of bonds to provide that (1) action by the
holders of a majority (rather than the current
25%) in principal amount of the then
outstanding bonds is required to accelerate the
maturity of all outstanding bonds upon Default
and (2) any such acceleration and its
consequences are automatically rescinded
(rather than at the option of the holders as is
currently provided) upon the curing of all
Defaults;
(xvi) to reduce the quorum requirements for
bondholder meetings from 75% to a majority; and
(xvii) to modify the remedies provisions to
increase to a majority from 25% the percentage
of the principal amount of outstanding bonds,
the holders of which must have requested that
the 1940 Indenture Trustee take action before
individual holders may institute suits against
the Company.
(b) with respect to any other amendments or
modifications to the 1940 Indenture as follows:
the Trustee will vote all Class "A" Bonds issued under
the 1940 Indenture then held by it, or consent with
respect thereto, proportionately with what is reasonably
believed to be the vote or consent of the holders of all
other bonds Outstanding under the 1940 Indenture, the
holders of which are eligible to vote or consent;
provided, however, that (i) at any time the Class "A"
Bonds under the 1940 Indenture held by the Trustee
constitute a majority of the principal amount of the
Outstanding bonds under the 1940 Indenture or (ii) at any
time such Class "A" Bonds held by the Trustee constitute
less than such a majority but there is a proposed
amendment or modification of the 1940 Indenture which, if
it were an amendment or modification of the Mortgage (See
"DESCRIPTION OF THE COLLATERAL TRUST BONDS - Modification
of the Mortgage"), would require the consent of Holders,
then, in either case, the Trustee may only vote such
Class "A" Bonds in accordance with the vote of the
Holders of at least a majority of the principal amount of
the bonds casting a vote and shall seek that vote in
accordance with the provisions of the Mortgage applicable
to required votes of Holders in respect of amendments or
modifications to the Mortgage.
DESCRIPTION OF THE ISU 1923 INDENTURE
General
The summaries of the ISU 1923 Indenture set forth below
do not purport to be complete and are subject to the detailed
provisions of the ISU 1923 Indenture, a copy of which was
previously filed with the Commission, is listed as an exhibit
to the Registration Statement of which this Prospectus is a
part, and is incorporated herein by reference. Capitalized
terms used in this section which are not otherwise defined in
this Prospectus shall have the meanings ascribed to them in
the ISU 1923 Indenture. Wherever particular provisions or
terms defined in the ISU 1923 Indenture are referred to in
this section, such provisions or definitions are incorporated
by reference as part of the statements made in this section,
and such statements are qualified in their entirety by such
reference. References to article and section numbers herein,
unless otherwise indicated, are references to article and
section numbers of the ISU 1923 Indenture.
Security
The ISU 1923 Indenture constitutes a direct first
mortgage lien upon substantially all of the property and
rights of Iowa Southern existing at the time of the IE-ISU
merger on December 31, 1993 and upon extensions and additions
appurtenant to such property, with certain exceptions for
certain types of property (including accounts receivable) as
provided in the ISU 1923 Indenture, and subject only to
permitted liens. (Granting Clauses)
Any bonds issued under the ISU 1923 Indenture as the
basis for the issuance of Bonds under the Mortgage will be
secured equally and ratably with the bonds of all other series
then outstanding under the ISU 1923 Indenture.
Effect of the IE-ISU Merger on the ISU 1923 Indenture
The merger of IE and ISU did not impair the lien of the
ISU 1923 Indenture or any of the rights or powers of the ISU
Indenture Trustees or the bondholders under the ISU 1923
Indenture. (Article XVI) Subsequent to that merger, the
Company became the successor to ISU under the ISU 1923
Indenture.
Issuance of Additional Bonds
The ISU 1923 Indenture does not fix an overall limitation
on the aggregate principal amount of the bonds of all series
that may be issued or outstanding thereunder. (Section 2.01)
Provided that the Earnings Applicable to Bond Interest
for a period of twelve consecutive calendar months within the
fifteen months immediately preceding issuance are at least
twice the annual interest requirements of the bonds applied
for and all bonds and Prior Lien Bonds outstanding, additional
bonds of any series may be issued:
(a) in an aggregate principal amount not exceeding
60% of the Cost or Fair Value, whichever is less, of
Property Additions after adjustments to offset
retirements and amounts removed from the utility plant or
fixed capital accounts of the former Iowa Southern
(Article V);
(b) in an aggregate principal amount not exceeding
the aggregate principal amount of bonds which shall have
been retired (other than bonds retired through the use of
certain funds) (Article VI);
(c) upon deposit of cash with the ISU Corporate
Trustee, in an amount equal to the principal amount of
the bonds to be so issued (and such cash may be withdrawn
by the Company in a sum equal to the aggregate principal
amount of the bonds which could be issued under clause
(a) or (b) above). (Article VII)
Bonds issuable under the ISU 1923 Indenture are available
as the basis for the issuance of securities under the
Mortgage. As of September 30, 1995, on the basis of the most
restrictive provisions described above, the Company would have
been entitled to issue at least $109 million of additional
bonds under the ISU 1923 Indenture.
Maintenance Fund
The ISU 1923 Indenture provides that so long as bonds
shall be outstanding, the Company will pay to the ISU
Corporate Trustee annually, as a maintenance fund, a sum of
money equal to 15% of the gross operating revenue of the
Company derived during the calendar year preceding such
payment from the operation of the physical properties subject
to the lien of the ISU 1923 Indenture after deducting (1) all
gross operating revenue derived during such period from the
operation of property subject to a prior lien and (2) an
amount equal to the total cost to the Company of electric
energy and natural gas purchased by it (and allocable to
operations of property subject to the lien of the ISU 1923
Indenture) during such period with certain deductions. The
Company is entitled to credits against such annual payment for
certain amounts expended for maintenance and repairs and
Unapplied Balance of Property Additions, retired bonds, and
other matters. Any moneys deposited by the Company with the
ISU Corporate Trustee in the maintenance fund will, upon the
request of the Company, be applied by the ISU Corporate
Trustee to the purchase or redemption of bonds or may be
withdrawn by the Company in certain circumstances. (Article
XII)
Substitutions and Releases
Generally, property subject to the lien of the ISU 1923
Indenture may be released only upon the deposit or pledge with
the ISU Corporate Trustee of cash, purchase money obligations,
securities, or the certification of property additions or, in
certain instances, upon the substitution of other property of
equivalent value. The Company may also, under certain
conditions, without release, terminate, change, or assent to
the modification of leases, easements, franchises, and
governmental permits. (Article XI)
Satisfaction and Discharge of Indenture
If the Company shall pay the principal of, premium (if
any), and interest on all outstanding bonds issued under the
ISU 1923 Indenture (bonds for the payment or redemption of
which necessary funds have been deposited with the ISU
Corporate Trustee being deemed paid), then the ISU Indenture
Trustees may, and upon the request of the Company shall,
cancel and discharge the lien of the ISU 1923 Indenture and
reconvey to the Company the mortgaged and pledged property.
(Article XIX)
Modification of the ISU 1923 Indenture
To the extent permitted by the terms of the ISU 1923
Indenture, modification or alteration of the ISU 1923
Indenture or any indenture supplemental thereto, and of the
rights and obligations of the Company and of ISU bondholders,
may be made with the consent of the Company by an affirmative
vote of the holders of not less than 80% in principal amount
of the outstanding bonds issued under the ISU 1923 Indenture
and entitled to vote at a meeting of bondholders and by an
affirmative vote of the holders of not less than 80% of the
principal amount of such bonds of the series affected by the
change; provided, however, that no such modification or
alteration intended to effect or permit the extension of the
maturity of the principal of any bond, the reduction in the
rate of interest thereon, or any other modification in the
terms of payment of such principal or interest, or the taking
of certain other actions, such as creating liens ranking prior
to, or on parity with, the lien of the ISU 1923 Indenture,
shall be effective as to any bond the holder of which has not
assented to such modification or alteration. (Article XX)
(See "Voting of Class "A" Bonds" below.)
The Company may fail or omit to comply with certain
covenants or conditions of the ISU 1923 Indenture with the
written consent of the holders of at least 66 2/3% of the
principal amount of all outstanding bonds issued under the ISU
1923 Indenture. (Section 15.19)
Defaults and Notice Thereof
Defaults under the ISU 1923 Indenture are defined in
substance as being (a) failure to pay principal of, or premium
(if any) on, any bond issued under the ISU 1923 Indenture; (b)
failure to pay any installment of interest on any such bond,
and such failure continues for 30 days; (c) failure to observe
any covenant or condition prescribed by the provisions of any
sinking fund created for the benefit of such bonds of any
series; (d) failure by the Company to perform any other
covenant or agreement in such bonds or in the ISU 1923
Indenture, and such failure continues for 60 days after
written notice is given; and (e) certain events relating to
reorganization, bankruptcy and insolvency of the Company, and
the appointment of a receiver. (Section 15.01)
The ISU 1923 Indenture Trustees are required to give
notice of any default to bondholders within 90 days after the
occurrence thereof, unless such default is cured before the
giving of such notice (except in the case of certain defaults,
notice of which is not to be given by such Trustees until at
least 60 days after the occurrence thereof). The ISU
Indenture Trustees may withhold notice of default (except in
the payment of principal of, or interest or premium (if any)
on, any of the bonds or in the payment of any sinking fund or
purchase fund installment) if the ISU Corporate Trustee
determines that such withholding is in the interest of the
bondholders. (Section 17.11)
Holders of a majority of the principal amount of
outstanding bonds may direct the method, time, and place of
conducting any proceedings for any remedy available to the ISU
Indenture Trustees for any sale of the property subject to the
lien of the ISU 1923 Indenture, or for the foreclosure of the
ISU 1923 Indenture, or for the appointment of a receiver, or
for the taking of any other action authorized by the ISU 1923
Indenture in respect of a default or refraining therefrom.
(Section 15.05)
No holder of any bond or coupon shall have any right to
any remedy under the ISU 1923 Indenture, unless such holder
has given prior written notice to the ISU 1923 Indenture
Trustees of the default, 25% in aggregate principal amount of
the bonds outstanding have made prior written request to the
ISU Corporate Trustee and have afforded reasonable opportunity
to the 1923 ISU Indenture Trustees to pursue the remedy in the
trustees' own names, and the ISU 1923 Indenture Trustees have
been offered adequate indemnity for costs, expenses and
liabilities which may be incurred thereby. (Section 15.15)
The Company must file an annual Certificate with the ISU
Corporate Trustee as to compliance with the conditions and
covenants of the ISU 1923 Indenture and as to the absence of
default with respect to any of the covenants contained in the
ISU 1923 Indenture. (Section 14.03)
Voting of Class "A" Bonds
The Trustee will, as holder of any Class "A" Bonds issued
under the ISU 1923 Indenture, attend such meetings of
bondholders under the ISU 1923 Indenture, or deliver its proxy
in connection therewith, as relate to matters with respect to
which it is entitled to vote or consent. The Mortgage
provides that, so long as no Event of Default as defined in
the Mortgage has occurred or is continuing, the Trustee will,
as holder of such Class "A" Bonds, vote or consent:
(a) in favor of amendments or modifications to the ISU
1923 Indenture of substantially the same tenor and effect as
the following, together with all amendments and modifications
required to effectuate the following:
(i) to provide that, whenever the ISU 1923
Indenture requires authorization by, or a
resolution of, the Board of Directors or an
Executive Committee thereof for the issuance of
a series of bonds or the determination of the
terms thereof, the requirement shall be
satisfied if the action taken would be
sufficient for the issuance of a series of
bonds, or the determination of the terms
thereof, under the Mortgage;
(ii) to eliminate the maintenance fund and to
provide that, to the extent Property Additions
or bonds previously outstanding have been taken
as a credit, or cash held by the ISU Corporate
Trustee has been deposited, in each case to
satisfy the Maintenance Fund Requirements, such
Property Additions, previously outstanding
bonds and cash may be used for any purpose
under the ISU 1923 Indenture (including as a
basis for the issuance of bonds) as if they had
never been so credited or deposited;
(iii) to permit bonds to be issued in a
principal amount equal to 75%, instead of 60%,
of Property Additions;
(iv) to eliminate the Net Earnings requirements
for all purposes, including in connection with
the issuance of bonds;
(v) to broaden the definition of "Property
Additions" to include property not used by the
Company in its electric, gas or steam business;
(vi) to permit the release, without compliance
with other provisions of the ISU 1923
Indenture, of any property, provided that (1)
the fair value of property released pursuant to
this provision, together with the fair value of
all other property so released in the then
current calendar year, shall not exceed an
amount equal to the greater of $5,000,000 and
3% of the aggregate principal amount of bonds
then outstanding under the ISU 1923 Indenture;
(vii) to permit the withdrawal by the
Company, without compliance with other
provisions of the ISU 1923 Indenture, of cash
in an amount, together with other amounts paid
over to the Company pursuant to this provision
in the then current calendar year, up to the
greater of $5,000,000 and 3% of the aggregate
principal amount of the bonds then outstanding
under the ISU 1923 Indenture; provided that
such cash must be expended for Property
Additions;
(viii) to increase the amount of cash
withdrawable by the Company on the basis of
retired property from 100% of the cost or fair
value of such property to 133-1/3% of such cost
or fair value;
(ix) to raise the minimum dollar amount of any
one fire loss which must be payable to the ISU
Indenture Trustees from $10,000 to an amount
equal to the greater of $5,000,000 and 3% of
the aggregate principal amount of bonds then
outstanding under the ISU 1923 Indenture;
(x) to modify the definition of "defaults"
under the ISU 1923 Indenture to be
substantially the same as "Events of Default"
under the Mortgage;
(xi) to modify the provisions of the ISU 1923
Indenture for the acceleration of the maturity
of bonds to provide that (1) action by the
holders of a majority (rather than the current
25%) in principal amount of the then
outstanding bonds is required to accelerate the
maturity of all outstanding bonds upon default
and (2) any such acceleration and its
consequences are automatically rescinded
(rather than at the option of the holders as is
currently provided) upon the curing of all
defaults;
(xii) to reduce the quorum requirements for
bondholder meetings from 80% to a majority; and
(xiii) to modify the remedies provisions to
increase to a majority from 25% the percentage
of the principal amount of bonds, the holders
of which must have requested the ISU Corporate
Trustee to take action before individual
holders may institute suits against the
Company.
(b) with respect to any other amendments or
modifications to the ISU 1923 Indenture, as follows:
the Trustee will vote all Class "A" Bonds issued under
the ISU 1923 Indenture then held by it, or consent with
respect thereto, proportionately with what is reasonably
believed to be the vote or consent of the holders of all
other bonds outstanding under the ISU 1923 Indenture, the
holders of which are eligible to vote or consent;
provided, however, that (i) at any time such Class "A"
Bonds under the ISU 1923 Indenture held by the Trustee
constitute a majority of the principal amount of the
Outstanding bonds under the ISU 1923 Indenture or (ii) at
any time such Class "A" Bonds held by the Trustee
constitute less than such a majority but there is a
proposed amendment or modification of the ISU 1923
Indenture which, if it were an amendment or modification
of the Mortgage (See "DESCRIPTION OF THE COLLATERAL TRUST
BONDS - Modification of the Mortgage"), would require the
consent of Holders, then, in either case, the Trustee may
only vote such Class "A" Bonds in accordance with the
vote of the Holders of at least a majority of the
principal amount of the securities casting a vote and
shall seek that vote in accordance with the provisions of
the Mortgage applicable to required votes of Holders in
respect of amendments or modifications to the Mortgage.
DESCRIPTION OF THE SUBORDINATED INDENTURE
General
The Securities may be issued in one or more series under
the Indenture For Unsecured Subordinated Debt Securities (the
"Subordinated Indenture") between the Company and The First
National Bank of Chicago, as trustee (the "Subordinated
Indenture Trustee"). The summaries of the Subordinated
Indenture set forth below do not purport to be complete and
are subject to the detailed provisions of the Subordinated
Indenture, a copy of which is filed with the Commission as an
exhibit to the Registration Statement of which this Prospectus
is a part and is incorporated in this section by reference.
Capitalized terms used in this section which are not otherwise
defined in this Prospectus shall have the meanings ascribed to
them in the Subordinated Indenture. Wherever particular
provisions or terms defined in the Subordinated Indenture are
referred to in this section, such provisions or definitions
are incorporated by reference as part of the statements made
in this section, and such statements are qualified in their
entirety by such reference. References to article and section
numbers herein, unless otherwise indicated, are references to
article and section numbers of the Subordinated Indenture.
The Securities issued under the Subordinated Indenture
(the "Subordinated Debentures") will be unsecured,
subordinated obligations of the Company and shall not be
afforded any protection under the Mortgage, pursuant to which
various series of Collateral Trust Bonds may be issued.
Reference is made to the Prospectus Supplement, or a
supplement thereto, for a description of the following terms
of the series of Subordinated Debentures in respect of which
this Prospectus is being delivered: (1) the title of such
series of Subordinated Debentures; (2) any limit on the
aggregate principal amount of such Subordinated Debentures or
the series of which they are a part; (3) the Person or Persons
to whom interest on the Subordinated Debentures of such series
shall be payable if other than the Persons in whose names such
Subordinated Debentures are registered; (4) the date or dates
on which the principal of any of such Subordinated Debentures
will be payable; (5) the rate or rates (which may be fixed or
variable) and/or the method of determination of such rate or
rates at which any of such Subordinated Debentures will bear
interest, if any, the date or dates from which any such
interest will accrue, the Interest Payment Dates on which any
such interest will be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date; (6)
the place or places where (i) the principal of, premium, if
any, and interest on any of such Subordinated Debentures will
be payable, (ii) registration of transfer of such Subordinated
Debentures may be effected, (iii) exchanges of such
Subordinated Debentures may be effected and (iv) notices and
demands to or upon the Company in respect of such Subordinated
Debentures may be served; the Security Registrar for such
Subordinated Debentures and, if such is the case, that the
principal of such Subordinated Debentures shall be payable
without presentment or surrender thereof; (7) the period or
periods within which, or the date or dates on which, the price
or prices at which and the terms and conditions upon which any
of such Subordinated Debentures may be redeemed, in whole or
in part, at the option of the Company; (8) the obligation or
obligations, if any, of the Company to redeem or purchase any
of such Subordinated Debentures pursuant to any sinking fund
or other mandatory redemption provisions or at the option of
the Holder thereof, and the period or periods within which, or
the date or dates on which, the price or prices at which and
the terms and conditions upon which any of such Subordinated
Debentures shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and applicable exceptions
to the requirements of a notice of redemption in the case of
mandatory redemption or redemption at the option of the
Holder; (9) the denominations in which any of such
Subordinated Debentures will be issuable, if other than
denominations of $1,000 and any integral multiple thereof;
(10) if other than the currency of the United States, the
currency or currencies, including composite currencies, in
which payment of the principal of and any premium and interest
on any of such Subordinated Debentures will be payable; (11)
if the principal of or any premium or interest on any of such
Subordinated Debentures is to be payable, at the election of
the Company or the Holder thereof, in a coin or currency other
than in which such Subordinated Debentures are stated to be
payable, the period or periods within which and the terms and
conditions upon which, such election is to be made; (12) if
the principal of or premium, if any, or interest on such
Subordinated Debentures are to be payable, or are to be
payable at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such
securities or other property, or the formulary or other method
or other means by which such amount shall be determined, and
the period or periods within which, and the terms and
conditions upon which, any such election may be made; (13) if
the amount payable in respect of principal of or any premium
or interest on any of such Subordinated Debentures may be
determined with reference to an index or other fact or event
ascertainable outside the Subordinated Indenture, the manner
in which such amounts will be determined; (14) if other than
the principal amount thereof, the portion of the principal
amount of any of such Subordinated Debentures which shall be
payable upon declaration of acceleration of the Maturity
thereof; (15) any addition to the Events of Default applicable
to any of such Subordinated Debentures and any addition to the
covenants of the Company for the benefit of the Holders of
such Subordinated Debentures; (16) the terms, if any, pursuant
to which such Subordinated Debentures may be converted into or
exchanged for shares of capital stock or other securities of
the Company or any other Person; (17) the obligations or
instruments, if any, which shall be considered to be Eligible
Obligations in respect of such Subordinated Debentures
denominated in a currency other than Dollars or in a composite
currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such
Subordinated Debentures after the satisfaction and discharge
thereof; (18) if such Subordinated Debentures are to be issued
in global form, (i) any limitations on the rights of the
Holder or Holders of such Subordinated Debentures to transfer
or exchange the same or to obtain the registration of transfer
thereof, (ii) any limitations on the rights of the Holder or
Holders thereof to obtain certificates therefor in definitive
form in lieu of temporary form and (iii) any and all other
matters incidental to such Subordinated Debentures; (19) if
such Subordinated Debentures are to be issuable as bearer
securities; (20) any limitations on the rights of the Holders
of such Subordinated Debentures to transfer or exchange such
Subordinated Debentures or to obtain the registration of
transfer thereof, and if a service charge will be made for the
registration of transfer or exchange of such Subordinated
Debentures, the amount or terms thereof; (21) any exceptions
to the provisions governing payments due on legal holidays or
any variations in the definition of Business Day with respect
to such Subordinated Debentures; and (22) any other terms of
such Subordinated Debentures of such series, or any Tranche
thereof, not inconsistent with the provisions of the
Subordinated Indenture. (Section 301)
Subordinated Debentures may be sold at a substantial
discount below their principal amount. Certain special United
States federal income tax considerations applicable to
Subordinated Debentures sold at an original issue discount may
be described in the applicable Prospectus Supplement. In
addition, certain special United States federal income tax or
other considerations applicable to any Subordinated Debentures
which are denominated in a currency or currency unit other
than Dollars may be described in the applicable Prospectus
Supplement.
Except as may otherwise be described in the Prospectus
Supplement, the covenants contained in the Subordinated
Indenture would not afford Holders of Subordinated Debentures
protection in the event of a highly-leveraged transaction or
change of control involving the Company.
Subordination
The Subordinated Indenture provides that payment of the
principal of, premium, if any, and interest on Subordinated
Debentures is subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness (as
defined below) of the Company, all as provided in the
Subordinated Indenture. No payment of principal of (including
redemption of and sinking fund payments), premium, if any, or
interest on, Subordinated Debentures may be made if payment of
principal, premium, interest or any other payment on any
Senior Indebtedness is not made when due, any applicable grace
period with respect to such default has ended and such default
has not been cured or waived or ceased to exist, or if the
maturity on any Senior Indebtedness has been accelerated
because of default. Upon any distribution of assets of the
Company to creditors upon any dissolution, winding up,
liquidation or reorganization, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all principal of, premium, if any, and
interest due or to become due on, all Senior Indebtedness must
be paid in full before any payment on the Subordinated
Debentures. Subject to the payment in full of all Senior
Indebtedness, the rights of the holders of Subordinated
Debentures will be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions
applicable to Senior Indebtedness until all amounts owing on
Subordinated Debentures are paid in full. (Sections 1501 -
1504)
The term "Senior Indebtedness" means all obligations
(other than non-recourse obligations and the indebtedness
issued under the Subordinated Indenture) of, or guaranteed or
assumed by, the Company for borrowed money, including both
senior and subordinated indebtedness for borrowed money (other
than the Subordinated Debentures), or for the payment of money
relating to any lease which is capitalized on the consolidated
balance sheet of the Company and its subsidiaries in
accordance with generally accepted accounting principles, or
evidenced by bonds, debentures, notes or other similar
instruments, and in each case, amendments, renewals,
extensions, modifications and refundings of any such
indebtedness or obligations, whether existing as of the date
of the Subordinated Indenture or subsequently incurred by the
Company. (Section 101) Such Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the
benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any terms of such Senior
Indebtedness. (Section 1509)
The Subordinated Indenture does not limit the aggregate
amount of Senior Indebtedness that may be issued. As of
September 30, 1995, Senior Indebtedness of the Company
aggregated approximately $603 million.
Form, Exchange, and Transfer
Unless otherwise specified in the applicable Prospectus
Supplement, Subordinated Debentures of each series will be
issuable only in fully registered form without coupons and in
denominations of $1,000 and any integral multiple thereof.
(Sections 201 and 302)
At the option of the Holder, subject to the terms of the
Subordinated Indenture and the limitations applicable to
global securities, Subordinated Debentures of any series will
be exchangeable for other Subordinated Debentures of the same
series, of any authorized denomination and of like tenor and
aggregate principal amount. (Section 305)
Subject to the terms of the Subordinated Indenture and
the limitations applicable to global securities, Subordinated
Debentures may be presented for exchange as provided above for
registration of transfer (duly endorsed or accompanied by a
duly executed instrument of transfer) at the office of the
Security Registrar or at the office of any transfer agent
designated by the Company for such purpose. Unless otherwise
indicated, no service charge will be made for any registration
of transfer or exchange of Subordinated Debentures, but the
Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection
therewith. Every Subordinated Debenture presented or
surrendered for registration of transfer or exchange shall (if
so required by the Company, the Subordinated Indenture Trustee
or the Security Registrar) be duly endorsed or accompanied by
an executed written instrument of transfer in form
satisfactory to the Company, the Subordinated Indenture
Trustee or the Security Registrar. (Section 305) Any
transfer agent (in addition to the Security Registrar)
initially designated by the Company for any Subordinated
Debenture will be named in the applicable Prospectus
Supplement. The Company may at any time designate additional
transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any
transfer agent acts, except that the Company will be required
to maintain a transfer agent in each Place of Payment for the
Subordinated Debentures of each series. The Company may
perform all functions of any office or agency. (Section 602)
The Company shall not be required to execute or register
the transfer of or the exchange of any Subordinated Debenture,
or any Tranche thereof, during a period of 15 days preceding
the notice to be given identifying the Subordinated Debenture
called for redemption, or any Subordinated Debentures so
selected for redemption, in whole or in part, except the
unredeemed portion of any such Subordinated Debenture being
redeemed in part. (Section 305)
Payment and Paying Agent
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of interest on a Subordinated Debenture on
any Interest Payment Date will be made to the person in whose
name such Subordinated Debenture (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus
Supplement, principal of and any interest on the Subordinated
Debentures of a particular series will be payable at the
office of such Paying Agent or Paying Agents as the Company
may designate for such purpose from time to time. Unless
otherwise indicated in the applicable Prospectus Supplement,
the corporate trust office of the Subordinated Indenture
Trustee in New York, New York will be designated as the
Company's sole Paying Agent for payment with respect to
Subordinated Debentures of each series. Any other Paying
Agents initially designated by the Company for the
Subordinated Debentures of a particular series will be named
in the applicable Prospectus Supplement. The Company may at
any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in the
office through which any Paying Agent acts, except that the
Company will be required to maintain a Paying Agent in each
Place of Payment for the Subordinated Debentures of a
particular series. (Section 602)
Any moneys deposited by the Company with the Trustee or
any Paying Agent for the payment of the principal of or any
premium or interest on any Subordinated Debenture which
remains unclaimed at the end of two years after such
principal, premium or interest has become due and payable will
be paid to the Company, and the Holder of such Subordinated
Debenture, as an unsecured general creditor and not as a
Holder, thereafter may look only to the Company for payment
thereof. (Section 603)
Redemption
Any terms for the optional or mandatory redemption of
Subordinated Debentures will be set forth in the applicable
Prospectus Supplement or a supplement thereto. Except as
shall otherwise be provided in the applicable Prospectus
Supplement with respect to Subordinated Debentures that are
redeemable at the option of the Holder, Subordinated
Debentures will be redeemable only upon notice by mail not
less than 30 days nor more than 60 days prior to the date
fixed for redemption, and, if less than all the Subordinated
Debentures of a series, or any Tranche thereof, are to be
redeemed, the particular Subordinated Debentures to be
redeemed will be selected by the Securities Registrar by such
method as shall be provided for any particular series, or in
the absence of any such provision, by such method of random
selection as the Security Registrar deems fair and
appropriate. (Sections 403 and 404)
Any notice of redemption at the option of the Company may
state that such redemption will be conditional upon receipt by
the Paying Agent or Agents, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of
and premium, if any, and interest, if any, on such
Subordinated Debentures and that if such money has not been so
received, such notice will be of no force and effect and the
Company will not be required to redeem such Subordinated
Debentures. (Section 404)
Consolidation, Merger, Conveyance, or other Transfer
Under the terms of the Subordinated Indenture, the
Company may not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless (i)
the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a Person
organized and existing under the laws of any domestic
jurisdiction and shall expressly assume the Company's
obligations on the Subordinated Debentures and under the
Subordinated Indenture, (ii) immediately after giving effect
to the transaction, no Event of Default shall have occurred
and be continuing, and (iii) the Company will have delivered
to the Subordinated Indenture Trustee an Officer's Certificate
and an Opinion of Counsel as provided in the Subordinated
Indenture. (Section 1101)
Events of Default
Each of the following will constitute an Event of Default
under the Subordinated Indenture with respect to Subordinated
Debentures of any series: (a) failure to pay any interest on
any Subordinated Debentures of such series within 60 days
after the same becomes due and payable; provided, that an
extension of an interest payment period by the Company
permitted by the terms of the series shall not constitute a
failure to pay interest for this purpose; (b) failure to pay
principal of or premium, if any, on any Subordinated Debenture
of such series within three business days after the same
becomes due and payable; (c) failure to perform or breach of
any other covenant or warranty of the Company in the
Subordinated Indenture (other than a covenant or warranty of
the Company in the Subordinated Indenture solely for the
benefit of one or more series of Subordinated Debentures other
than such series) for 60 days after written notice to the
Company by the Subordinated Indenture Trustee, or to the
Company and the Subordinated Indenture Trustee by the Holders
of at least 33% in principal amount of the Subordinated
Debentures of such series Outstanding under the Subordinated
Indenture as provided in the Subordinated Indenture; (d)
certain events of bankruptcy, insolvency or reorganization;
and (e) any other Event of Default specified in the applicable
Prospectus Supplement with respect to Subordinated Debentures
of a particular series. (Section 801)
An Event of Default with respect to the Subordinated
Debentures may not necessarily constitute an Event of Default
with respect to the Subordinated Debentures of any other
series issued under the Subordinated Indenture.
If an Event of Default with respect to any series of
Subordinated Debentures occurs and is continuing, then either
the Subordinated Indenture Trustee or the Holders of not less
than 33% in principal amount of the Outstanding Subordinated
Debentures of such series may declare the principal amount (or
if the Subordinated Debentures of such series are Discount
Securities, such portion of the principal amount hereof as may
be specified in the applicable Prospectus Supplement) of all
of the Subordinated Debentures of such series to be due and
payable immediately; provided, however, that if an Event of
Default occurs and is continuing with respect to more than one
series of Subordinated Debentures, the Subordinated Indenture
Trustee or the Holders of not less than 33% in aggregate
principal amount of the Outstanding Securities of all such
series, considered as one class, may make such declaration of
acceleration and not the Holders of the Subordinated
Debentures of any one of such series.
Subject to the provisions of the Subordinated Indenture
relating to the duties of the Subordinated Indenture Trustee
in case an Event of Default shall occur and be continuing, the
Subordinated Indenture Trustee will be under no obligation to
exercise any of its rights or powers under the Subordinated
Indenture at the request or direction of any Holder, unless
such Holder shall have offered to the Subordinated Indenture
Trustee reasonable security or indemnity. (Section 903)
Subject to such provisions of the indemnification of the
Subordinated Indenture Trustee, the Holders of a majority in
principal amount of the Outstanding Subordinated Debentures of
any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Subordinated Indenture Trustee, or exercising any trust or
power conferred on the Subordinated Indenture Trustee, with
respect to the Subordinated Debentures of that series.
(Section 812)
No Holder of a Subordinated Debenture of any series will
have any right to institute any proceeding with respect to the
Subordinated Indenture, or for the appointment of a receiver
or a trustee, of for any other remedy thereunder, unless (i)
such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the
Subordinated Debentures of such series, (ii) the Holders of
not less than a majority in aggregate principal amount of the
Outstanding Subordinated Debentures of such series have made
written request to the Subordinated Indenture Trustee, and
such Holder or Holders have offered reasonable indemnity to
the Subordinated Indenture Trustee, to institute such
proceeding as trustee and (iii) the Subordinated Indenture
Trustee has failed to institute such proceeding, and has not
received from the Holders of a majority in aggregate principal
amount of the Outstanding Subordinated Debentures of that
series a direction inconsistent with such request, within 60
days after such notice, request and offer. (Section 807)
However, such limitations do not apply to a suit instituted by
a Holder of a Subordinated Debenture for the enforcement of
payment of the principal of or any premium or interest on such
Subordinated Debenture on or after the applicable due date
specified in such Subordinated Debenture. (Section 808)
The Company will be required to furnish to the
Subordinated Indenture Trustee annually, not later than
October 1 in each year, a statement by an appropriate officer
as to such officer's knowledge of the Company's compliance
with all conditions and covenants under the Subordinated
Indenture, such compliance to be determined without regard to
any period of grace or requirement of notice under the
Subordinated Indenture. (Section 606)
Right to Cure
At any time after the declaration of acceleration with
respect to the Subordinated Debentures of any series has been
made and before a judgment or decree for payment of the money
due has been obtained, the Event or Events of Default giving
rise to such declaration of acceleration will, without further
act, be deemed to have been waived, and such declaration and
its consequences will, without further act, be deemed to have
been rescinded and annulled, if
(a) the Company has paid or deposited with the
Subordinated Indenture Trustee a sum sufficient to pay
(1) all overdue interest on all Subordinated
Debentures of such series;
(2) the principal of and premium, if any, on any
Subordinated Debentures of such series which have become
due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed
therefor in such Subordinated Debentures;
(3) interest upon overdue interest at the rate or
rates prescribed therefor in such Subordinated
Debentures, to the extent that payment of such interest
is lawful; and
(4) all amounts due to the Subordinated Indenture
Trustee under the Subordinated Indenture; and
(b) any other Event or Events of Default with respect to
the Subordinated Debentures of such series, other than the non-
payment of the principal of the Subordinated Debentures of
such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in the
Subordinated Indenture. (Section 802)
Modification and Waiver
Without the consent of any Holder of Subordinated
Debentures, the Company and the Subordinated Indenture Trustee
may enter into one or more supplemental indentures to the
Subordinated Indenture for any of the following purposes: (a)
to evidence the assumption by any permitted successor to the
Company of the covenants of the Company in the Subordinated
Indenture and the Subordinated Debentures; or (b) to add one
or more covenants of the Company or other provisions for the
benefit of the Holders of all or any series of Outstanding
Subordinated Debentures or to surrender any right or power
conferred upon the Company by the Subordinated Indenture; or
(c) to add any additional Events of Default with respect to
all or any series of Outstanding Subordinated Debentures; or
(d) to change or eliminate any provision of the Subordinated
Indenture or to add any new provision to the Subordinated
Indenture, provided that if such change, elimination or
addition will adversely affect the interests of the Holders of
Subordinated Debentures of any series in any material respect,
such change, elimination or addition will become effective
with respect to such series only when the consent of the
Holders of such series so affected has been obtained or when
there is no Subordinated Debenture of such series remaining
Outstanding under the Subordinated Indenture; or (e) to
provide collateral security for the Subordinated Debentures;
or (f) to establish the form or terms of Subordinated
Debentures of any series as permitted by the Subordinated
Indenture; or (g) to provide for the authentication and
delivery of bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the procedures
for the registration, exchange and replacement thereof and for
giving of notice to, and the solicitation of the vote or
consent of, the Holders thereof, and for any and all other
matters incidental thereto; or (h) to evidence and provide for
the acceptance of appointment of a separate or successor
Subordinated Indenture Trustee under the Subordinated
Indenture with respect to the Subordinated Debentures of one
or more series and to add or to change any of the provisions
of the Subordinated Indenture as shall be necessary to provide
for or to facilitate the administration of the trusts under
the Subordinated Indenture by more than one trustee; or (i) to
provide for the procedures required to permit the utilization
of a noncertificated system of registration for any series of
Subordinated Debentures; or (j) to change any place where (1)
the principal of and premium, if any, and interest, if any, on
any Subordinated Debentures shall be payable, (2) any
Subordinated Debentures may be surrendered for registration of
transfer or exchange and (3) notices and demands to or upon
the Company in respect of Subordinated Debentures and the
Subordinated Indenture may be served; or (k) to cure any
ambiguity, to correct or supplement any defective or
inconsistent provision or to make or change any other
provisions with respect to matters and questions arising under
the Subordinated Indenture, provided such changes or additions
shall not adversely affect the interests of the Holders of
Subordinated Debentures of any series in any material respect.
(Section 1201)
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Subordinated Debentures of
any series may waive compliance by the Company with certain
restrictive provisions of the Subordinated Indenture.
(Section 607) The Holders of not less than a majority in
principal amount of the Outstanding Subordinated Debentures of
any series may waive any past default under the Subordinated
Indenture, except a default in the payment of principal,
premium or interest and certain covenants and provisions of
the Subordinated Indenture that cannot be modified or be
amended without the consent of the Holder of each Outstanding
Subordinated Debenture of such series affected. (Section 813)
Without limiting the generality of the foregoing, if the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), is amended after the date of the Subordinated Indenture
in such a way as to require changes to the Subordinated
Indenture or the incorporation therein of additional
provisions or so as to permit changes to, or the elimination
of, provisions which, at the date of the Subordinated
Indenture or at any time thereafter, were required by the
Trust Indenture Act to be contained in the Subordinated
Indenture, the Subordinated Indenture will be deemed to have
been amended so as to conform to such amendment or to effect
such changes or elimination, and the Company and the
Subordinated Indenture Trustee may, without the consent of any
Holders, enter into one or more supplemental indentures to
evidence or effect such amendment. (Section 1201)
Except as provided above, the consent of the Holders of
not less than a majority in aggregate principal amount of the
Subordinated Debentures of all series then Outstanding,
considered as one class, is required for the purpose of adding
any provisions to, or changing in any manner, or eliminating
any of the provisions of, the Subordinated Indenture pursuant
to one or more supplemental indentures; provided, however,
that if less than all of the series of Subordinated Debentures
Outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the Holders of a majority
in aggregate principal amount of Outstanding Subordinated
Debentures of all series so directly affected, considered as
one class, will be required; and provided, further, that if
the Subordinated Debentures of any series have been issued in
more than one Tranche and if the proposed supplemental
indenture directly affects the rights of the Holders of one or
more, but less than all, such Tranches, then the consent only
of the Holders of a majority in aggregate principal amount of
the Outstanding Subordinated Debentures of all Tranches so
directly affected, considered as one class, will be required;
and provided further, that no such supplemental indenture may
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Subordinated
Debenture, or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of any Discount
Security that would be due and payable upon a declaration of
acceleration of Maturity or change the coin or currency (or
other property) in which any Subordinated Debenture or any
premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any Subordinated
Debenture (or, in the case of redemption, on or after the
redemption date) without, in any such case, the consent of the
Holder of such Subordinated Debenture, (b) reduce the
percentage in principal amount of the Outstanding Subordinated
Debentures of any series, or any Tranche thereof, the consent
of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required
for any waiver of compliance with any provision of the
Subordinated Indenture or any default thereunder and its
consequences, or reduce the requirements for quorum or voting,
without, in any such case, the consent of the Holder of each
Outstanding Subordinated Debenture of such series or Tranche,
or (c) modify certain of the provisions of the Subordinated
Indenture relating to supplemental indentures, waivers of
certain covenants and waivers of past defaults with respect to
the Subordinated Debentures of any series, or any Tranche
thereof, without the consent of the Holder of each Outstanding
Subordinated Debenture affected thereby. A supplemental
indenture which changes or eliminates any covenant or other
provision of the Subordinated Indenture which has expressly
been included solely for the benefit of one or more particular
series of Subordinated Debentures or one or more Tranches
thereof, or modifies the rights of the Holders of Subordinated
Debentures of such series or Tranches with respect to such
covenant or other provision, will be deemed not to affect the
rights under the Indenture of the Holders of the Subordinated
Debentures of any other series or Tranche. (Section 1202)
The Subordinated Indenture provides that in determining
whether the Holders of the requisite principal amount of the
Outstanding Subordinated Debentures have given any request,
demand, authorization, direction, notice, consent, or waiver
under the Subordinated Indenture as of any date, or whether or
not a quorum is present at a meeting of Holders, (i)
Subordinated Debentures owned by the Company or any other
obligor upon the Subordinated Debentures or any Affiliate of
the Company or of such other obligor (unless the Company, such
Affiliate or such obligor owns all Securities Outstanding
under this Subordinated Indenture, or all Outstanding
Subordinated Debentures of each such series and each such
Tranche, as the case may be, determined without regard to this
clause (i)) shall be disregarded and deemed not to be
Outstanding; (ii) the principal amount of a 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 as
provided in the Subordinated Indenture; and (iii) the
principal amount of a Subordinated Debenture denominated in
one or more foreign currencies or a composite currency that
will be deemed to be Outstanding will be the Dollar
equivalent, determined as of such date in the manner
prescribed for such Subordinated Debenture, of the principal
amount of such Subordinated Debenture (or, in the case of a
Subordinated Debenture described in clause (ii) above, of the
amount described in such clause). (Section 101)
If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, election,
waiver or other Act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination
of Holders entitled to give such request, demand,
authorization, direction, notice, consent, election, waiver or
other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, election, 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 the
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the
Outstanding Subordinated Debentures have authorized or agreed
or consented to such request, demand, authorization,
direction, notice, consent, direction, waiver or other Act,
and for that purpose the Outstanding Subordinated Debentures
shall be computed as of the record date. Any request, demand,
authorization, direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder of the
same Subordinated Debenture and the Holder of every
Subordinated Debenture issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Subordinated
Debenture. (Section 104)
Defeasance
Unless otherwise indicated in the applicable Prospectus
Supplement, any Subordinated Debenture, or any portion of the
principal amount thereof, will be deemed to have been paid for
purposes of the Subordinated Indenture, and, at the Company's
election, the entire indebtedness of the Company in respect
thereof will be deemed to have been satisfied and discharged,
if there has been irrevocably deposited with the Subordinated
Indenture Trustee or any Paying Agent (other than the
Company), in trust: (a) money in an amount which will be
sufficient, or (b) Eligible Obligations (as described below),
which do not contain provisions permitting the redemption or
other prepaying thereof at the option of the issuer thereof,
the principal of and the interest on which when due, without
any regard to reinvestment thereof, will provide monies which,
together with money, if any, deposited with or held by the
Subordinated Indenture Trustee or such Paying Agent, will be
sufficient, or (c) a combination of (a) and (b) which will be
sufficient, to pay when due the principal of and premium, if
any, and interest, if any, due and to become due on such
Subordinated Debentures or portions thereof. (Section 701)
For this purpose, unless otherwise indicated in the applicable
Prospectus Supplement, Eligible Obligations include direct
obligations of, or obligations unconditionally guaranteed by,
the United States, entitled to the benefit of the full faith
and credit thereof, and certificates, depositary receipts or
other instruments which evidence a direct ownership interest
in such obligations or in any specific interest or principal
payments due in respect thereof. (Section 101)
While the Company knows of no legal precedent on point,
it is possible that, for federal income tax purposes, any
deposit contemplated in the preceding paragraph could be
treated as a taxable exchange of the related securities for an
issue of obligations of the trust or a direct interest in the
cash and securities held in the trust. In that case, Holders
of such securities would recognize gain or loss as if the
trust obligations or the cash or securities deposited, as the
case may be, had actually been received by them in exchange
for their securities. In addition, such Holders thereafter
would be required to recognize for federal income tax purposes
a share of the income, gain or loss of the trust. The amount
so required to be recognized could be different from the
amount that would be recognized in the absence of such
deposit. Prospective investors are urged to consult their own
tax advisors as to the specific consequences to them of any
such deposit.
Resignation of Subordinated Indenture Trustee
The Subordinated Indenture Trustee may resign at any time
by giving written notice thereof to the Company or may be
removed at any time by Act of the Holders of a majority in
principal amount of Subordinated Debentures then Outstanding
delivered to the Subordinated Indenture Trustee and the
Company. No resignation or removal of the Subordinated
Indenture Trustee and no appointment of a successor trustee
will become effective until the acceptance of appointment by a
successor trustee in accordance with the requirements of the
Subordinated Indenture. So long as no Event of Default or
event which, after notice or lapse of time, or both, would
become an Event of Default has occurred and is continuing and
except with respect to a Subordinated Indenture Trustee
appointed by Act of the Holders of a majority in principal
amount of the Outstanding Subordinated Debentures, if the
Company has delivered to the Trustee a resolution of its Board
of Directors appointing a successor trustee and such successor
has accepted such appointment in accordance with the terms of
the Subordinated Indenture, the Subordinated Indenture Trustee
will be deemed to have resigned and the successor will be
deemed to have been appointed as trustee in accordance with
the Subordinated Indenture. (Section 910)
Notices
Notices to Holders of Subordinated Debentures will be
given by mail to the addresses of such Holders as they may
appear in the Security Register. (Section 106)
Title
The Company, the Subordinated Indenture Trustee, and any
agent of the Company or the Subordinated Indenture Trustee may
treat the Person in whose name a Subordinated Debenture is
registered as the absolute owner thereof (whether or not such
Subordinated Debenture may be overdue) for the purpose of
making payment and for all other purposes. (Section 308)
Governing Law
The Subordinated Indenture and the Subordinated
Debentures will be governed by, construed in accordance with,
the laws of the State of New York, except to the extent the
law of any other jurisdiction shall be mandatorily applicable.
(Section 112)
Limitation on Suits
The Subordinated Indenture limits a Holder's right to
institute any proceeding with respect to the Subordinated
Indenture, the appointment of a receiver or trustee, or for
any other remedy under the Subordinated Indenture. (Section
807)
Maintenance of Properties
The Subordinated Indenture provides that the Company
shall cause (or, with respect to property owned in common with
others, make reasonable effort to cause) all its properties
used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order and shall
cause (or, with respect to property owned in common with
others, make reasonable effort to 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 conducted; provided, however, that
nothing shall prevent the Company from discontinuing, or
causing the discontinuance of, the operation and maintenance
of any of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business. (Section 605)
Modification of Senior Indebtedness
In general, the holders of Senior Indebtedness may,
without in any manner affecting the subordination of the
payment of principal of and premium, if any, and interest, if
any, on the Subordinated Debentures in their absolute
discretion agree with the Company to change the manner, place
or terms of payment, change or extend the time of payment of,
or renew or alter, any Senior Indebtedness, or amend or
supplement any instrument pursuant to which any Senior
Indebtedness is issued, or exercise or refrain from exercising
any other of their rights under the Senior Indebtedness
including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders
or the Trustee. (Section 1509)
Relationship with the Subordinated Indenture Trustee
See "DESCRIPTION OF THE COLLATERAL TRUST BONDS --
Relationship with the Trustee" for a description of certain
relationships between the Subordinated Indenture Trustee and
the Company.
GLOBAL SECURITIES
Some or all of the Securities of any series may be
represented, in whole or in part, by one or more global
securities (each, a "Global Security") which will have an
aggregate principal amount equal to that of the Securities
represented thereby. Each Global Security will be registered
in the name of a depositary (the "Depositary") or a nominee
thereof identified in the applicable Prospectus Supplement,
will be deposited with such Depositary or nominee or a
custodian therefor and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof
referred to below and any such other matters as may be
provided for pursuant to the Mortgage or Subordinated
Indenture, as the case may be.
As long as the Depositary, or its nominee, is the
registered holder of a Global Security, the Depositary or such
nominee, as the case may be, will be considered the sole owner
and holder of such Global Security and the Securities
represented thereby for all purposes under the Mortgage or the
Subordinated Indenture, as the case may be. Except in limited
circumstances, owners of beneficial interests in a Global
Security will not be entitled to have such Global Security or
any Securities represented thereby registered in their names,
will not receive or be entitled to receive physical delivery
of certificated Securities in exchange therefor and will not
be considered to be the owners or holders of such Global
Security or any Securities represented thereby for any purpose
under the Securities or, as the case may be, the Mortgage or
the Subordinated Indenture. All payments of principal of and
any premium and interest on a Global Security will be made to
the Depositary or its nominee, as the case may be, as the
Holder thereof. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of
such securities in definitive form. These laws may impair the
ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security
will be limited to institutions that have accounts with the
Depositary or its nominee (`participants") and to persons that
may hold beneficial interests through participants. In
connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of
Securities represented by the Global Security to the accounts
of its participants. Ownership of beneficial interests in a
Global Security will be shown only on, and the transfer of
those ownership interests will be effected only through,
records maintained by the Depositary (with respect to
participants' interests) or any such participant (with respect
to interests of persons held by such participants on their
behalf). Payments, transfers, exchanges, and other matters
relating to beneficial interests in a Global Security may be
subject to various policies and procedures adopted by the
Depositary from time to time. None of the Company, the
Mortgage Trustee or the Subordinated Indenture Trustee, or any
agents of each of the foregoing, will have any responsibility
or liability for any aspect of the Depositary's or any
participant's records relating to, or for payments made on
account of, beneficial interests in a Global Security, or for
maintaining, supervising, or reviewing any records relating to
such beneficial interests.
EXPERTS
The financial statements and schedules included in the
latest Annual Report on Form 10-K of the Company have been
audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto
and are incorporated by reference herein in reliance upon the
authority of said firm as experts in auditing and accounting
in giving said report.
LEGAL MATTERS
The legality of the Securities will be passed upon for
the Company by Stephen W. Southwick, Vice President, General
Counsel & Secretary of the Company, 200 First Street S.E.,
Cedar Rapids, Iowa 52401, and by Winthrop, Stimson, Putnam &
Roberts, One Battery Park Plaza, New York, New York 10004, and
for any underwriters, dealers, agents or purchasers by Dorsey
& Whitney P.L.L.P., 801 Grand; Suite 3900, Des Moines, Iowa
50309. However, all matters pertaining to the Lien of the
Mortgage will be passed upon only by Bradley & Riley, P.C.,
special Iowa Counsel to the Company, and by Stephen W.
Southwick, Vice President, General Counsel & Secretary. All
matters pertaining to organization of the Company, titles to
property and franchises will be passed upon only by Stephen W.
Southwick, Vice President, General Counsel & Secretary.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the
issuance and distribution of the Securities, other than
underwriting discounts and commissions are as follows:
Registration Fee--Securities and Exchange Commission
(actual).......................................... $ 86,207
Printing and Engraving Cost......................... $ 70,000
Trustee's Charges including Authentication.......... $ 10,000
Attorney's Fees and Expenses........................ $ 180,000
Accountant's Fees and Expenses...................... $ 75,000
Blue Sky Expenses................................... $ 15,000
Rating Agency Fees.................................. $ 80,000
Recording and Listing Fees.......................... $ 120,000
Miscellaneous....................................... $ 5,000
Total................................ $ 641,207
Item 15. Indemnification.
Section 490.851 of the Iowa Business Corporations Act
("IBCA") grants each corporation organized thereunder, such as
the Registrant, the power to indemnify its directors and
officers against liabilities for certain of their acts.
Section 6.1 of the Registrant's Bylaws, as amended, provides
for indemnification of directors and officers of the
Registrant to the full extent permitted by Section 490.851 of
the IBCA. Section 6.1 further requires the Registrant to
purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the
Registrant as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted and incurred
against such person in any such capacity or arising out of
such person's status as such, whether or not the Registrant
would have the power to indemnify such person against such
liability under the provisions of Section 6.1. Section 2 of
Article Ninth of the Registrant's Amended Articles of
Incorporation, however, requires that the Registrant may, but
is not required to, maintain such insurance.
Section 490.832 of the IBCA grants corporations organized
thereunder, such as the Registrant, the authority to adopt a
provision in their respective articles of incorporation
eliminating or limiting, with certain exceptions, the personal
liability of a director to the corporation or to its
shareholders for monetary damages for certain breaches of
fiduciary duty as a director. Section 1 of Article Ninth of
the Amended Articles of Incorporation of the Registrant
eliminates the personal liability of each director except for
liability (i) for any breach of the director's duty of loyalty
to the Registrant or its shareholders, (ii) for acts or
omissions not in good faith or which involve any intentional
misconduct or knowing violation of the law, (iii) any
transaction from which the director derived an improper
personal benefit, or (iv) under Section 490.833 of the IBCA
relating to liability for unlawful distribution.
The foregoing statements are subject to the detailed
provisions of Sections 490.832, 490.833 and 490.851 of the
IBCA, Article Ninth of the Amended Articles of Incorporation
of the Registrant and Section 6.1 of the Bylaws, as amended of
the Registrant, as applicable and should be read in
conjunction therewith for a more full understanding of their
affect on the Registrant.
The Registrant's directors' and officers' insurance
policies are designed to reimburse the Registrant for any
payments made by it pursuant to the foregoing indemnification
provisions.
II - 1
The proposed form of underwriting agreement for each of
the Securities contains provisions under which the
underwriters agree to indemnify the directors and officers of
the Registrant against certain liabilities under the
Securities Act of 1933, as amended (the "Act").
Item 16. Exhibits.
See Exhibit Index on Page II - 6.
Item 17. Undertakings.
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 Act;
(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 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 (1)(i) and (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, as
amended (the "Exchange Act") that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining liability under
the Act, 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 which remain unsold
at the termination of the offering.
(4) That for purposes of determining any liability under
the Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act)
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.
II - 2
Insofar as indemnification for liabilities arising under
the Act, as amended, may be permitted to directors, officers,
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the 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, the Registrant 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.
II - 3
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
the City of Cedar Rapids, State of Iowa, on the 17th day of
November, 1995.
IES UTILITIES INC.
By: /s/ Blake O. Fisher, Jr.
Blake O. Fisher, Jr.,
President, Chief Operating
Officer & Chief Financial
Officer and Director
Pursuant to the requirements of the Securities Act of
1933, as amended, such Amendment No. 1 to the Registration
Statement has been signed below on the 17th day of November,
1995, by the following persons in the capacities indicated:
Signature Title
/s/ Lee Liu* Chairman of the Board &
Lee Liu Chief Executive Officer
(Principal Executive Officer)
/s/ Blake O. Fisher, Jr. President, Chief Operating
Blake O. Fisher, Jr. Officer & Chief Financial
Officer and Director
(Principal Financial Officer)
/s/ Richard A. Gabbianelli* Controller & Chief Accounting
Richard A. Gabbianelli Officer
(Principal Accounting Officer)
/s/ C.R.S. Anderson* Director
C.R.S. Anderson
/s/ J. Wayne Bevis* Director
J. Wayne Bevis
/s/ Dr. George Daly* Director
Dr. George Daly
II - 4
Signature Title
/s/ G. Sharp Lannom, IV* Director
G. Sharp Lannom, IV
/s/ Jack R. Newman* Director
Jack R. Newman
/s/ Robert D. Ray* Director
Robert D. Ray
/s/ David Q. Reed* Director
David Q. Reed
/s/ Henry Royer* Director
Henry Royer
/s/ Robert W. Schlutz* Director
Robert W. Schlutz
/s/ Anthony R. Weiler* Director
Anthony R. Weiler
*By: /s/ Blake O. Fisher, Jr.
(Attorney-in-fact)
II - 5
EXHIBIT INDEX
Exhibit Number List of Exhibits
1(a) Proposed form of Underwriting Agreement
relating to Collateral Trust Bonds ("Bonds")
(Previously filed).
1(b) Proposed form of Underwriting Agreement
relating to Subordinated Debentures to be issued
under the Subordinated Indenture.
*4(a) Indenture of Mortgage and Deed of Trust, dated as of
September 1, 1993, between the Company (formerly
Iowa Electric Light and Power Company ("IE")) and
The First National Bank of Chicago, as Trustee
("Mortgage") (Filed as Exhibit 4(c) to IE's Form 10-
Q for the quarter ended September 30, 1993).
*4(b) Supplemental Indentures to the Mortgage:
Number Dated as of File Reference Exhibit
First October 1, 1993 Form 10-Q,11/12/93 4(d)
Second November 1, 1993 Form 10-Q, 11/12/93 4(e)
Third March 1, 1995 Form 10-Q, 5/12/95 4(b)
4(c) Proposed form of Fourth Supplemental Indenture
establishing the series of Bonds (including form of
Bonds) (Previously filed).
*4(d) Indenture of Mortgage and Deed of Trust, dated as of
August 1, 1940, between the Company (formerly IE)
and The First National Bank of Chicago, Trustee
(1940 Indenture) (Filed as Exhibit 2(a) to IE's
Registration Statement, File No. 2-25347).
*4(e) Supplemental Indentures to the 1940 Indenture:
Number Dated as of IE File Exhibit
Reference
First March 1, 1941 2-25347 2(a)
Second July 15, 1942 2-25347 2(a)
Third August 2, 1943 2-25347 2(a)
Fourth August 10, 1944 2-25347 2(a)
Fifth November 10, 1944 2-25347 2(a)
Sixth August 8, 1945 2-25347 2(a)
Seventh July 1, 1946 2-25347 2(a)
Eighth July 1, 1947 2-25347 2(a)
Ninth December 15, 1948 2-25347 2(a)
Tenth November 1, 1949 2-25347 2(a)
Eleventh November 10, 1950 2-25347 2(a)
Twelfth October 1, 1951 2-25347 2(a)
Thirteenth March 1, 1952 2-25347 2(a)
Fourteenth November 5, 1952 2-25347 2(a)
Fifteenth February 1, 1953 2-25347 2(a)
Sixteenth May 1, 1953 2-25347 2(a)
Seventeenth November 3, 1953 2-25347 2(a)
Eighteenth November 8, 1954 2-25347 2(a)
II - 6
Number Dated as of IE File Reference Exhibit
Nineteenth January 1, 1955 2-25347 2(a)
Twentieth November 1, 1955 2-25347 2(a)
Twenty-first November 9, 1956 2-25347 2(a)
Twenty-second November 6, 1957 2-25347 2(a)
Twenty-third November 4, 1959 2-25347 2(a)
Twenty-fourth November 3, 1959 2-25347 2(a)
Twenty-fifth November 1, 1960 2-25347 2(a)
Twenty-sixth January 1, 1961 2-25347 2(a)
Twenty-seventh November 7, 1961 2-25347 2(a)
Twenty-eighth November 6, 1962 2-25347 2(a)
Twenty-ninth November 5, 1963 2-25347 2(a)
Thirtieth November 4, 1964 2-25347 2(a)
Thirty-first November 2, 1965 2-25347 2(a)
Thirty-second September 1, 1966 Form 10-K, 1966 4.10
Thirty-third November 30, 1966 Form 10-K, 1966 4.10
Thirty-fourth November 7, 1967 Form 10-K, 1967 4.10
Thirty-fifth November 5, 1968 Form 10-K, 1968 4.10
Thirty-sixth November 1, 1969 Form 10-K, 1969 4.10
Thirty-seventh December 1, 1970 Form 8-K, 12/70 1
Thirty-eighth November 2, 1971 2-43131 2(g)
Thirty-ninth May 1, 1972 Form 8-K, 5/72 1
Fortieth November 7, 1972 2-56078 2(i)
Forty-first November 7, 1973 2-56078 2(j)
Forty-second September 10, 1974 2-56078 2(k)
Forty-third November 5, 1975 2-56078 2(l)
Forty-fourth July 1, 1976 Form 8-K, 7/76 1
Forty-fifth November 1, 1976 Form 8-K, 12/76 1
Forty-sixth December 1, 1977 2-60040 2(o)
Forty-seventh November 1, 1978 Form 10-Q, 6/30/79 1
Forty-eighth December 1, 1979 Form S-16, 2-65996 2(q)
Forty-ninth November 1, 1981 Form 10-Q, 3/31/82 2
Fiftieth December 1, 1980 Form 10-K, 1981 4(s)
Fifty-first December 1, 1982 Form 10-K, 1982 4(t)
Fifty-second December 1, 1983 Form 10-K, 1983 4(u)
Fifty-third December 1, 1984 Form 10-K, 1984 4(v)
Fifty-fourth March 1, 1985 Form 10-K, 1984 4(w)
Fifty-fifth March 1, 1988 Form 10-Q, 5/12/88 4(b)
Fifty-sixth October 1, 1988 Form 10-Q,11/10/88 4(c)
Fifty-seventh May 1, 1991 Form 10-Q, 8/13/91 4(d)
Fifty-eighth March 1, 1992 Form 10-K, 1991 4(c)
Fifty-ninth October 1, 1993 Form 10-Q,11/12/93 4(a)
Sixtieth November 1, 1993 Form 10-Q,11/12/93 4(b)
Sixty-first March 1, 1995 Form 10-Q, 5/12/95 4(a)
4(f) Proposed form of Sixty-second Supplemental Indenture
providing for the issuance of Class "A" Bonds under
the 1940 Indenture (including form of Class "A"
Bonds) (Previously filed).
ll - 7
*4(g) Indenture or Deed of Trust dated as of February 1,
1923, between the Company (successor to Iowa
Southern Utilities Company (IS) as a result of
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 (ISU 1923 Indenture) (Filed as Exhibit B-
1 to File No. 2-1719).
*4(h) Supplemental Indentures to the ISU 1923 Indenture:
Dated as of IS File Reference Exhibit
May 1, 1940 2-4921 B-1-k
May 2, 1940 2-4921 B-1-l
October 1, 1945 2-8053 7(m)
October 2, 1945 2-8053 7(n)
January 1, 1948 2-8053 7(o)
September 1, 1950 33-3995 4(e)
February 1, 1953 2-10543 4(b)
October 2, 1953 2-10543 4(q)
August 1, 1957 2-13496 2(b)
September 1, 1962 2-20667 2(b)
June 1, 1967 2-26478 2(b)
February 1, 1973 2-46530 2(b)
February 1, 1975 2-53860 2(aa)
July 1, 1975 2-54285 2(bb)
September 2, 1975 2-57510 2(bb)
March 10, 1976 2-57510 2(cc)
February 1, 1977 2-60276 2(ee)
January 1, 1978 0-849 2
March 1, 1979 0-849 2
March 1, 1980 0-849 2
May 31, 1986 33-3995 4(g)
July 1, 1991 0-849 4(h)
September 1, 1992 0-849 4(m)
December 1, 1994 Form 10-K, 1994 4(f)
4(i) Proposed form of Indenture, dated as of
________, 19__, between the Company and The First
National Bank of Chicago, Trustee (Subordinated
Indenture).
5 Opinion of Stephen W. Southwick, Vice
President, General Counsel & Secretary as to the
legality of the Securities (including consent of
counsel) (Previously filed).
*12 Ratio of Earnings to Fixed Charges (Filed as
Exhibit 12 to the Company's Form 10-Q for the
quarter ended September 30, 1995).
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Stephen W. Southwick, Vice President,
General Counsel & Secretary (contained in Exhibit 5)
(Previously filed).
II - 8
24 Power of Attorney (included on p. II - 4 of the
Registration Statement) (Previously filed).
25(a) Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, of The
First National Bank of Chicago, as Trustee under the
Mortgage (Previously filed).
25(b) Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, of The
First National Bank of Chicago, as Trustee under the
Subordinated Indenture.
26 Form of Letter to Prospective Purchasers
regarding the Securities (Previously filed).
* The exhibits listed above and marked with an asterisk
were filed as exhibits to registration statements or reports
previously filed with the Commission under the exhibit number
and file reference number shown after each such exhibit, and
they are hereby incorporated herein by reference.
II - 9
EXHIBIT 1(b)
UNDERWRITING AGREEMENT
For the Purchase of Subordinated Debentures
of IES Utilities Inc.
IES UTILITIES INC.
c/o Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties, and subject to the terms and
conditions, set forth in this agreement ("Underwriting
Agreement"), each Underwriter (defined below) shall purchase
from IES Utilities Inc. ("Company"), severally and not
jointly, and the Company shall sell to each of the
Underwriters (defined below), the principal amount of the
Company's unsecured junior subordinated debentures
("Subordinated Debentures") set forth opposite the name of
such Underwriter in Schedule II hereto at the price specified
in Schedule I hereto, plus accrued interest, if any, at the
rate specified in Schedule I hereto from either the first day
or the fifteenth day, as specified in Schedule I hereto, of
the month in which Debentures are issued, to the Closing Date
(hereinafter defined). The aggregate principal amount of such
Subordinated Debentures being sold hereunder is hereinafter
referred to as the "Debentures."
SECTION 2. Underwriters and Representative. The
term "Underwriters," as used herein, shall be deemed to mean
the several persons, firms, or corporations named in Schedule
II hereto (including any substituted Underwriters under the
provisions of Section 6), and the term "Representative," as
used herein, shall be deemed to mean the representative or
representatives of such Underwriters by whom or on whose
behalf this Underwriting Agreement is signed. If there shall
be one person, firm, or corporation named in said Schedule II,
the term "Underwriters" and the term "Representative," as used
herein, shall mean that person, firm, or corporation. All
obligations of the Underwriters are several and not joint.
SECTION 3. Description of the Bonds. The
Debentures shall be in the aggregate principal amount and
shall mature on the date specified in Schedule I hereto, and
shall be issued under and secured by the Indenture (herein so
called), dated as of ___________, 1995, of the Company to The
First National Bank of Chicago as Trustee ("Trustee"). The
Debentures shall bear interest at the rate per annum specified
in Schedule I hereto. The Debentures and the Indenture are
more fully described in the Prospectus hereinafter referred
to.
SECTION 4. Representations and Warranties of the
Company. The Company represents and warrants that:
(a) It has filed with the Securities and Exchange
Commission ("Commission") a registration statement (File No.
33-_____) (the "Registration Statement") for the registration
of $250,000,000 principal amount of the Company's debt
securities under the Securities Act of 1933, as amended
("Securities Act"). The Registration Statement has become
effective. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for
that purpose have been initiated or threatened by the
Commission. The prospectus (including the supplement thereto)
forming a part of the Registration Statement, at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to as
the "Basic Prospectus." In the event that the Basic
Prospectus shall have been amended, revised, or supplemented
(but excluding any amendments, revisions, or supplements to
the Basic Prospectus relating solely to the offering of debt
securities other than the Debentures) prior to the time of
effectiveness of this Underwriting Agreement, and with respect
to any documents filed by the Company pursuant to Section 13,
14, or 15(d) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), after the time the Registration
Statement initially became effective and up to the time of
effectiveness of this Underwriting Agreement (but excluding
documents incorporated therein by reference relating solely to
the offering of debt securities other than the Debentures),
which documents are deemed to be incorporated by reference in
the Basic Prospectus, the term "Basic Prospectus" as used
herein shall also mean such prospectus as so amended, revised,
or supplemented. The Registration Statement as it initially
became effective and as it may have been amended by any
amendment thereto incorporated in the Basic Prospectus
(including for these purposes as an amendment any document
incorporated by reference in the Basic Prospectus) and the
Basic Prospectus as it shall be supplemented to reflect the
terms of offering and sale of the Debentures by a prospectus
supplement ("Prospectus Supplement") to be filed with the
Commission pursuant to Rule 424 under the Securities Act
("Rule 424"), are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively;
(b) After the time of effectiveness of this Underwriting
Agreement, the Company will not file (i) any amendment to the
Registration Statement (except any amendment relating solely
to the offering of debt securities other than the Debentures)
or supplement to the Prospectus or (ii) prior to the time that
the Prospectus is filed with the Commission pursuant to Rule
424, any document which is to be incorporated by reference in,
or any supplement (including the Prospectus Supplement) to,
the Basic Prospectus, in either case without prior notice to
each of the Representative and Dorsey & Whitney P.L.L.P.
("Counsel for the Underwriters"), or any such amendment,
supplement, or document to which said Counsel shall reasonably
object on legal grounds in writing. For purposes of this
Underwriting Agreement, any document filed with the Commission
after the effectiveness of this Underwriting Agreement and
incorporated by reference in the Prospectus (except documents
incorporated by reference relating solely to the offering of
debt securities other than the Debentures) pursuant to Item 12
of Form S-3 shall be deemed a supplement to the Prospectus;
(c) The Registration Statement, at the time of its
effectiveness, fully complied, the Indenture, at the time of
its execution, will fully comply, and the Prospectus, when
filed with the Commission pursuant to Rule 424 and at the
Closing Date (hereinafter defined), as it may then be
supplemented or amended, will fully comply, in all material
respects with the applicable provisions of the Securities Act,
the Trust Indenture Act of 1939, as amended ("Trust Indenture
Act"), and the rules and regulations of the Commission
thereunder or pursuant to said rules and regulations will be
deemed to comply therewith; the documents incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
on the date first filed with the Commission pursuant to the
Exchange Act, fully complied and on the date the Prospectus is
filed with the Commission pursuant to Rule 424 and at the
Closing Date (hereinafter defined) will comply in all material
respects with the applicable provisions of the Exchange Act
and the rules and regulations of the Commission thereunder or
pursuant to said rules and regulations were or will be deemed
to comply therewith; on the date of its effectiveness, the
Registration Statement and any post-effective amendment
thereto (but excluding in each case any post-effective
amendment relating solely to the offering of debt securities
other than the Debentures) or, if later than such dates, on
the date that the Company's most recent annual report on Form
10-K was filed with the Commission under the Exchange Act, the
Registration Statement, as amended by any such post-effective
amendment, did not or will not, as the case may be, 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; the Prospectus, at
the date it is filed with the Commission pursuant to Rule 424
and at the Closing Date (hereinafter defined), as it may be
amended or supplemented, 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 are made, not misleading; and
on said dates and at such times, the documents then
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, when read together with the Prospectus, or the
Prospectus as it may then be amended or supplemented, will not
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, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the foregoing representations and
warranties in this subsection (c) shall not apply to
statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by or through the Representative on behalf of any Underwriter
expressly for use in connection with the preparation of the
Registration Statement or the Prospectus, as they may be
amended or supplemented, or to any statements in or omissions
from the statement of eligibility, as it may be amended, under
the Trust Indenture Act of the Trustee under the Indenture;
(d) The Federal Energy Regulatory Commission has
authorized the issuance and sale of the Debentures; such
authorization is in full force and effect; the issuance and
sale of the Debentures pursuant to this Underwriting Agreement
will not violate the terms of such authorization; and no other
authorization, approval or consent of any other governmental
body or regulatory authority is legally required for the
issuance and sale of the Debentures pursuant to this
Underwriting Agreement, except such as have been obtained
under the Securities Act and the Trust Indenture Act and such
as may be required under the state securities or "blue sky"
laws in connection with the purchase and distribution of the
Debentures by the Underwriters;
(e) The Company is a corporation duly incorporated, and
validly existing, and in good standing under the laws of the
State of Iowa and has full power and authority (corporate and
other) under such laws to own its properties and to conduct
its business as described in the Registration Statement and
the Prospectus; and the Company does not own or lease
substantial properties or conduct its business in any state
other than the State of Iowa;
(f) The Debentures have been duly authorized, and, when
issued and delivered pursuant to this Agreement, will have
been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by and secured by
the Indenture; the Indenture has been duly authorized and,
when executed and delivered by the Company and the Trustee,
will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, except in each case
as the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity
or at law) and by an implied covenant of good faith and fair
dealing; and the Debentures and the Indenture will conform in
all material respects to the descriptions thereof in the
Prospectus; and
(g) The consummation by the Company of the transactions
herein contemplated and the fulfillment of the terms hereof
will not result in a breach of any of the terms or provisions
of, or constitute a default under, the Company's Articles of
Incorporation or Bylaws, as amended, or of any indenture or
other agreement or instrument to which the Company is now a
party.
SECTION 5. Offering. Forthwith upon the execution
of this Underwriting Agreement, the Representative, acting on
behalf of the Underwriters, shall advise the Company whether a
public offering of the Debentures is to be made, and, if so,
shall furnish to the Company (which information shall be
confirmed in writing as soon as practicable thereafter) (a)
the information with respect to such offering of the
Debentures and related matters that is required to complete
the Prospectus Supplement or any post-effective amendment to
the Registration Statement which may be required and a copy of
any "agreement among underwriters"; (b) if a post-effective
amendment to the Registration Statement is required, a
consent, if necessary, to the filing of the post-effective
amendment or an acceptable power-of-attorney authorizing an
available individual to sign the consent on its behalf; and
(c) such further information, if any, as may be required to be
furnished by the Company under the Federal Power Act. Such
information and the power-of-attorney may be provided by
telecopier (in the case of the power-of-attorney, followed
promptly by an executed copy). Nothing in this Underwriting
Agreement shall be construed to require that the Underwriters
make any such public offering on a "fixed price" basis. The
Representative agrees to notify the Company in writing of any
change in the plan of distribution of the Debentures that
would require a supplement to the Prospectus or an amendment
to the Registration Statement.
SECTION 6. Time and Place of Closing. Delivery of
the Debentures and payment therefor by check or checks,
payable to the Company or its order, in New York, New York, or
by wire transfer, in immediately available funds, shall be
made at the offices of Winthrop, Stimson, Putnam & Roberts,
One Battery Park Plaza, New York, New York, at 10:00 A.M., New
York Time, on the date which is three business days after the
date on which this Underwriting Agreement becomes effective,
or at such other place, time, and/or date as the
Representative and the Company may agree upon in writing or as
may be established in accordance with the following paragraph.
The hour and date of such delivery and payment are herein
called the "Closing Date."
The Debentures shall be delivered to the
Representative for the respective accounts of the Underwriters
in registered form in such authorized denominations and
registered in such names as the Representative may reasonably
request in writing at least two business days prior to the
Closing Date, or, to the extent not so requested, in the names
of the respective Underwriters in such denominations as the
Company shall determine.
For the purpose of expediting the checking of the
Debentures by the Representative, the Company agrees to make
the Debentures available to the Representative for checking
not later than 2:30 P.M., New York Time, on the last business
day preceding the Closing Date, at the New York office of
____________________, or at such other place, time, and/or
date as may be agreed upon between the Company and the
Representative.
If any Underwriter shall fail or refuse (otherwise
than for some reason sufficient to justify, in accordance with
the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal
amount of Debentures that it has agreed to purchase and pay
for hereunder, the Company shall immediately give notice to
the Representative of the default of such Underwriter, and the
other Underwriters shall have the right within twenty-four
(24) hours after the receipt of such notice by the
Representative to determine to purchase, or to procure one or
more others, who are members of the National Association of
Securities Dealers, Inc. ("NASD") (or, if not members of the
NASD, who are foreign banks, dealers, or institutions not
registered under the Exchange Act and who agree in making
sales to comply with the NASD's Rules of Fair Practice), and
satisfactory to the Company, to purchase, upon the terms
herein set forth, the principal amount of Debentures that the
defaulting Underwriter had agreed to purchase. If any non-
defaulting Underwriter or Underwriters shall determine to
exercise such right, the Representative shall give written
notice to the Company of such determination within twenty-four
(24) hours after it shall have received notice of any such
default, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine. If in the event of such a default the
Representative shall fail to give such notice, or shall within
such twenty-four (24) hour period give written notice to the
Company that no other Underwriter or Underwriters, or others,
will exercise such right, then this Underwriting Agreement may
be terminated by the Company, upon like notice given to the
Representative, within a further period of twenty-four (24)
hours. If in such case the Company shall not elect to
terminate this Underwriting Agreement, it shall have the
right, irrespective of such default:
(a) to require such non-defaulting
Underwriters to purchase and pay for the respective
principal amounts of Debentures that they had
severally agreed to purchase hereunder, as
hereinabove provided, and, in addition, the
principal amount of Debentures that the defaulting
Underwriter shall have so failed to purchase up to a
principal amount thereof equal to one-ninth (1/9th)
of the respective principal amounts of Debentures
that such non-defaulting Underwriters have otherwise
agreed to purchase hereunder, and/or
(b) to procure one or more others, who
are members of the NASD (or, if not members of the
NASD, who are foreign banks, dealers, or
institutions not registered under the Exchange Act
and who agree in making sales to comply with the
NASD's Rules of Fair Practice), to purchase, upon
the terms herein set forth, the principal amount of
Debentures that such defaulting Underwriter had
agreed to purchase, or that portion thereof that the
remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under
clause (a) and/or (b) above, the Company shall give written
notice thereof to the Representative within such further
period of twenty-four (24) hours, and, thereupon, the Closing
Date shall be postponed for such period, not exceeding three
business days, as the Company shall determine. In the event
the Company shall be entitled to but shall not elect to
exercise its rights under clause (a) and/or (b), the Company
shall be deemed to have elected to terminate this Underwriting
Agreement.
Any action taken by the Company under this Section 6
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this
Underwriting Agreement. Termination by the Company under this
Section 6 shall be without any liability on the part of the
Company or any non-defaulting Underwriter, except as otherwise
provided in subsection (h) of Section 7.
In the computation of any period of twenty-four (24)
hours referred to in this Section 6, there shall be excluded a
period of twenty-four (24) hours in respect of each Saturday,
Sunday, or legal holiday which would otherwise be included in
such period of time.
SECTION 7. Covenants of the Company. The Company
agrees with each of the Underwriters:
(a) To deliver to the Representative a
signed copy of the Registration Statement as
originally filed and of all amendments thereto
relating to the Debentures or a conformed copy
thereof certified by an officer of the Company to be
in the form filed.
(b) To deliver to the Underwriters,
through the Representative, prior to 10:00 A.M. New
York Time on the business day after the date on
which this Underwriting Agreement becomes effective
as many copies of the Prospectus as the
Representative may reasonably request.
(c) To cause the Prospectus to be filed
with the Commission pursuant to and in compliance
with Rule 424, and to advise the Representative
promptly of the issuance of any stop order under the
Securities Act with respect to the Registration
Statement or the institution of any proceedings
therefor of which the Company shall have received
notice. The Company will use its best efforts to
prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time (not
exceeding nine months) after the Prospectus has been
filed with the Commission pursuant to Rule 424 as
the Underwriters are required by law to deliver a
prospectus, if any event relating to or affecting
the Company or of which the Company shall be advised
in writing by the Representative shall occur which
in the Company's opinion should be set forth in a
supplement or amendment to the Prospectus in order
to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser of the Debentures, not misleading, to
notify the Representative of such event and to amend
or supplement the Prospectus by either (i) preparing
and filing with the Commission and furnishing to the
Representative at the Company's expense a reasonable
number of copies of a supplement or supplements or
an amendment or amendments to the Prospectus or (ii)
making an appropriate filing pursuant to Section 13,
14, or 15(d) of the Exchange Act, which will
supplement or amend the Prospectus so that, as
supplemented or amended, it will not contain an
untrue statement of a material fact or omit to state
a material fact required to be stated therein or
necessary in order to make the statements therein,
in the light of the circumstances when the
Prospectus is delivered to a purchaser of the
Debentures, not misleading; provided that should
such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume
the expense of preparing any such amendment or
supplement. In case any Underwriter is required to
deliver a prospectus after the expiration of nine
months from the date the Prospectus is filed with
the Commission pursuant to Rule 424, the Company,
upon the request of the Representative, will furnish
to the Representative, at the expense of such
Underwriter, a reasonable quantity of a supplemented
or amended prospectus or supplements or amendments
to the Prospectus complying with Section 10(a) of
the Securities Act.
(e) During such period of time after the
date the Prospectus is filed with the Commission
pursuant to Rule 424 as a prospectus relating to the
Debentures is required to be delivered under the
Securities Act, to file promptly all documents
required to be filed with the Commission pursuant to
Section 13, 14, or 15(d) of the Exchange Act.
(f) To make generally available to the
Company's security holders as soon as practicable an
earning statement (which need not be audited) in
reasonable detail covering a period of at least
twelve months beginning after the "effective date of
the registration statement" within the meaning of
Rule 158 under the Securities Act, which earning
statement shall be in such form, and be made
generally available to security holders in such a
manner, as to comply with the requirements of
Section 11(a) of the Securities Act and Rule 158
promulgated under the Securities Act.
(g) At any time within six months of the
date hereof, to furnish such proper information as
may be lawfully required and otherwise cooperate in
qualifying the Debentures for offer and sale under
the "Blue Sky" laws of such jurisdictions as the
Representative may reasonably designate, provided
that the Company shall not be required to qualify as
a foreign corporation or dealer in securities, to
file any consents to service of process under the
laws of any jurisdiction, or to meet any other
requirements deemed by the Company to be unduly
burdensome.
(h) Except as herein otherwise provided,
to pay all expenses and taxes (except transfer
taxes) in connection with (i) the preparation and
filing of the Registration Statement and any
amendments thereto, (ii) the issuance, printing, and
delivery of the Debentures, (iii) the qualification
of the Debentures under the "Blue Sky" laws of
various jurisdictions up to a maximum cost to it for
qualification and related legal fees of five
thousand dollars ($5,000), (iv) any fees charged by
securities rating services for rating the Debentures
and (v) the typing, printing, and delivery to the
Underwriters, through the Representative, of
reasonable quantities of copies of the Registration
Statement and the Prospectus, and any amendment or
supplement thereto, except as otherwise provided in
paragraph (d) of this Section. The Company shall
not, however, be required to pay any amount for any
expenses of the Representative or any of the
Underwriters, except that, if this Underwriting
Agreement shall be terminated in accordance with the
provisions of Section 8, 9, or 11, the Company will
reimburse the Representative for (i) the reasonable
fees and disbursements of counsel for the
Underwriters, whose fees and disbursements the
Underwriters agree to pay in any other event, and
(ii) their reasonable out-of-pocket expenses, in an
amount not exceeding a total of ten thousand dollars
($10,000), incurred in contemplation of the
performance of this Underwriting Agreement. The
Company shall not in any event be liable to any of
the Underwriters for damages on account of loss of
anticipated profits.
(i) Not to sell any additional
Subordinated Debentures until the earlier to occur
of (i) the Closing Date or (ii) in the case of an
initial public offering at a fixed price by the
Underwriters, the date of the termination of the
fixed price offering restrictions applicable to the
Underwriters. The Representative agrees to notify
the Company of such termination if it occurs prior
to the Closing Date.
SECTION 8. Conditions of Underwriters' Obligations.
The obligation of the Underwriters to purchase and pay for the
Debentures shall be subject to the accuracy of the
representations and warranties made herein on the part of the
Company and to the following conditions:
(a) The Prospectus shall have been filed
with the Commission pursuant to and in compliance
with Rule 424.
(b) No stop order suspending the
effectiveness of the Registration Statement shall be
in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending
before, or threatened by, the Commission on the
Closing Date; and at the Closing Date the
Representative shall have received a certificate,
dated the Closing Date and signed by an officer of
the Company, to the effect that no such stop order
has been or is in effect and that no proceedings for
such purpose are pending before, or to the knowledge
of the Company threatened by, the Commission.
(c) The authorization by the Federal
Energy Regulatory Commission of the issuance and
sale of the Debentures shall be in full force and
effect;
(d) At the Closing Date, the
Representative shall have received from Stephen W.
Southwick, Esq., counsel for IES Industries Inc.,
Winthrop, Stimson, Putnam & Roberts, counsel to the
Company, and Dorsey & Whitney P.L.L.P., counsel for
the Underwriters, opinions in substantially the form
and substance set forth in Exhibits A, B, and C
hereto, respectively, (i) with such changes therein
as may be agreed upon by the Company and the
Representative, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to
the Debentures shall be supplemented after the
Prospectus shall have been filed with the Commission
pursuant to Rule 424, with changes therein to
reflect such supplementation.
(e) On the Closing Date, the
Representative shall have received from Arthur
Andersen LLP a letter dated the Closing Date, in
substantially the form and substance set forth in
Exhibit D hereto.
(f) At the Closing Date, the
Representative shall have received a certificate of
the Company dated the Closing Date and signed by a
Vice President of the Company, to the effect that
(i) the Federal Energy Regulatory Commission has
authorized the issuance and sale of the Debentures
and such authorization is in full force and effect,
to the best knowledge of the signer; (ii) since the
most recent date as of which information is given in
the Prospectus, as it may have been amended or
supplemented, there has not been any material
adverse change in the business, property, or
financial condition of the Company and there has not
been any material transaction entered into by the
Company, other than transactions in the ordinary
course of business, in each case other than as
referred to in, or contemplated by, the Prospectus,
as it may have been amended or supplemented; and
(iii) to the best knowledge of the signer, the
representations and warranties of the Company in
this Underwriting Agreement are true and correct in
all material respects at and as of the Closing Date,
and the Company has complied with all the agreements
and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing
Date.
(g) All legal proceedings to be taken in
connection with the issuance and sale of the
Debentures shall have been satisfactory in form and
substance to Counsel for the Underwriters.
If any of the conditions specified in this Section 8
shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Representative with the consent of the
Underwriters, who may include the Representative, which have
agreed to purchase in the aggregate fifty percent (50%) or
more of the principal amount of the Debentures, upon notice
thereof to the Company. Any such termination shall be without
liability of any party to any other party, except as otherwise
provided in subsection (h) of Section 7.
SECTION 9. Conditions of Company's Obligations.
The obligations of the Company hereunder shall be subject to
the following conditions:
(a) The Prospectus shall have been filed
with the Commission pursuant to and in compliance
with Rule 424.
(b) No stop order suspending the
effectiveness of the Registration Statement shall be
in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending
before, or threatened by, the Commission on the
Closing Date.
(c) The authorization by the Federal
Energy Regulatory Commission of the issuance and
sale of the Debentures shall be in full force and
effect.
In case any of the conditions specified in this
Section 9 shall not have been fulfilled, this
Underwriting Agreement may be terminated by the
Company upon notice thereof to the Representative.
Any such termination shall be without liability of
any party to any other party, except as otherwise
provided in subsection (h) of Section 7.
SECTION 10. Indemnification.
(a) The Company shall indemnify, defend,
and hold harmless each Underwriter and each person
who controls any Underwriter within the meaning of
Section 15 of the Securities Act from and against
any and all losses, claims, damages, or liabilities,
joint or several, to which they or any of them may
become subject under the Securities Act or any other
statute or common law. The Company shall reimburse
each such Underwriter and controlling person for any
legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees)
incurred by them, such reimbursement to be made as
such expenses are incurred by them, in connection
with investigating any such losses, claims, damages,
or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses, or actions arise out of or
are based upon any untrue statement or alleged
untrue statement of a material fact contained in a
preliminary prospectus (if used prior to the initial
effective date of the Registration Statement), or in
the Basic Prospectus (if used prior to the date that
the Prospectus is filed with the Commission pursuant
to Rule 424) or in the Registration Statement or the
Prospectus, as amended or supplemented (if any
amendments or supplements thereto shall have been
made), or the omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements therein,
in light of the circumstances under which they were
made not misleading; provided, however, that the
indemnity agreement contained in this paragraph
shall not apply to any such losses, claims, damages,
liabilities, expenses, or actions arising out of, or
based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged
omission, if such statement or omission was made in
reliance upon and in conformity with written
information furnished to the Company by or through
the Representative on behalf of any Underwriter
expressly for use in connection with the preparation
of the Registration Statement or the Prospectus or
any amendment or supplement to either thereof, or
arising out of, or based upon, statements in or
omissions from that part of the Registration
Statement which shall constitute the statement of
eligibility under the Trust Indenture Act of the
Trustee under the Indenture; and provided further,
that the indemnity agreement contained in this
paragraph shall not inure to the benefit of any
Underwriter or of any person controlling any
Underwriter on account of any such losses, claims,
damages, liabilities, expenses, or actions arising
from the sale of the Debentures to any person if
there shall not have been given or sent to such
person on behalf of such Underwriter (i) with or
prior to the written confirmation of the sale to
such person a copy of the Prospectus, as then
amended or supplemented (exclusive for this purpose
of any amendment or supplement relating solely to
any offering of debt securities other than the
Debentures and of any document incorporated by
reference pursuant to Item 12 of Form S-3), and (ii)
as soon as available after such written confirmation
a copy of any amendment or supplement to the
Prospectus (exclusive for this purpose of any
document incorporated by reference pursuant to Item
12 of Form S-3) which the Company shall thereafter
furnish, pursuant to subsection (d) of Section 7
hereof, relating to an event occurring prior to the
payment for and delivery to such person of the
Debentures involved in such sale. The indemnity
agreement of the Company contained in this Section
and the representations and warranties of the
Company contained in Section 4 shall remain
operative and in full force and effect regardless of
any investigation made by or on behalf of any
Underwriter or any such controlling person, and
shall survive the delivery of the Debentures.
(b) Each Underwriter shall indemnify,
defend, and hold harmless the Company, its directors
and officers, and each person who controls any of
the foregoing within the meaning of Section 15 of
the Securities Act, from and against any and all
losses, claims, damages, or liabilities, joint or
several, to which they or any of them may become
subject under the Securities Act or any other
statute or common law and shall reimburse each of
them for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel
fees) incurred by them, such reimbursement to be
made as such expenses are incurred by them, in
connection with investigating any such losses,
claims, damages, or liabilities or in connection
with defending any action, insofar as such losses,
claims, damages, liabilities, expenses, or actions
arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact
contained in the Registration Statement or the
Prospectus, as amended or supplemented (if any
amendments or supplements thereto shall have been
furnished), or the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein
not misleading, if such statement or omission was
made in reliance upon and in conformity with written
information furnished to the Company by or through
the Representative on behalf of such Underwriter
expressly for use in connection with the preparation
of the Registration Statement or the Prospectus or
any amendment or supplement to either thereof. The
indemnity agreement of the respective Underwriters
contained in this paragraph shall remain operative
and in full force and effect regardless of any
investigation made by or on behalf of the Company,
its directors or officers, or any such controlling
person, and shall survive the delivery of the
Debentures.
(c) The Company and the several
Underwriters each shall, upon the receipt of notice
of the commencement of any action against it or any
person controlling it as aforesaid, in respect of
which indemnity may be sought on account of any
indemnity agreement contained herein, promptly give
written notice of the commencement thereof to the
party or parties against whom indemnity shall be
sought hereunder, but the omission so to notify the
indemnifying party or parties of any such action
shall not relieve the indemnifying party or parties
from any liability which it or they may have to the
indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any
such action shall be so given, the indemnifying
party shall be entitled to participate at its own
expense in the defense or, if it so elects, to
assume (in conjunction with any other indemnifying
parties) the defense of the action, in which event
the defense shall be conducted by counsel chosen by
such indemnifying party or parties and satisfactory
to the indemnified party or parties who shall be a
defendant or defendants in the action, and the
indemnified defendant or defendants shall bear the
fees and expenses of any additional counsel retained
by them; but if the indemnifying party shall elect
not to assume the defense of the action, the
indemnifying party will reimburse the indemnified
party or parties for the reasonable fees and
expenses of any counsel retained by the indemnified
party or parties. If the indemnifying party does
not employ counsel to take charge of the defense [or
the indemnified party] reasonably concludes that
there may be defenses available to it or any person
liable with it which are different from or in
addition to those available to the indemnifying
party (in which case the indemnifying party will not
have the right to assume the defense on behalf of
the indemnified party), legal expenses (limited to
those of one counsel for all indemnified parties)
and other expenses reasonably incurred by the
indemnified party will be paid by the indemnifying
party. No party will be liable with respect to any
settlement made without its prior written consent.
(d) If the indemnification provided for
in this Section 10 is unavailable to hold harmless
an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall
contribute to the amount paid or payable by such
indemnified party as a result of such losses,
claims, damages or liabilities (or actions in
respect thereof) in such proportion as is
appropriate to reflect the relative benefits
received by the Company on the one hand and the
Underwriters on the other from the offering of the
Debentures. If, however, the allocation provided by
the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party
shall contribute to such amount paid or payable by
such indemnified party in such proportion as is
appropriate to reflect not only such relative
benefits but also the relative fault of the Company
on the one hand and the Underwriters on the other in
connection with the statements or omissions which
resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The
relative benefits received by the Company on the one
hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net
proceeds from the offering (before deducting
expenses) received by the Company bear to the total
underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The
relative fault shall be determined by reference to,
among other things, whether the untrue or alleged
untrue statements of a material fact or the omission
or alleged omission to state a material fact relates
to information supplied by the Company on the one
hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to
information and opportunity to correct or prevent
such statements or omission. The Company and the
Underwriters agree that it would not be just and
equitable if contribution pursuant to this
subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method
of allocation which does not take account of
equitable considerations referred to above in this
subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified
party in connection with investigating or defending
any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess
of the amount by which the total price at which the
Debentures underwritten by it and distributed to the
public were offered to the public exceeds the amount
of any damages which such Underwriter 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of
such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The respective obligations of the
Company and the Underwriters under this Section 10
shall be in addition to any liability which each of
them may otherwise have.
SECTION 11. Termination. This Underwriting
Agreement may be terminated at any time prior to the Closing
Date by the Representative with the consent of the
Underwriters, who may include the Representative, which have
agreed to purchase in the aggregate fifty percent (50%) or
more of the aggregate principal amount of the Debentures, if,
prior to such time, (i) trading in securities on the New York
Stock Exchange shall have been generally suspended, (ii)
minimum or maximum ranges for prices shall have been generally
established on the New York Stock Exchange by the New York
Stock Exchange, the Commission, or other governmental
authority, (iii) a general banking moratorium shall have been
declared by federal or New York State authorities, (iv) an
outbreak or escalation of hostilities or other national or
international calamity or crisis occurs, the effect of which
on the financial markets of the United States is such as, in
the reasonable judgment of the Representative, to make it
impracticable to market the Debentures or enforce contracts
for the sale of the Debentures or (v) in the reasonable
judgment of the Representative, the subject matter of any
amendment or supplement (prepared by the Company) to the Basic
Prospectus, the Registration Statement or the Prospectus
(except for information relating to the public offering of the
Debentures or to the activity of any Underwriter or
Underwriters) filed or issued after the effectiveness of this
Underwriting Agreement by the Company shall have materially
impaired the marketability of the Debentures. Any termination
hereof pursuant to this Section 11 shall be without liability
of any party to any other party, except as otherwise provided
in subsection (h) of Section 7.
SECTION 12. Applicable Law. This Underwriting
Agreement and the Debentures to be sold hereunder shall be New
York contracts, and their validity and interpretation shall be
governed by the laws of the State of New York.
SECTION 13. Successors. This Underwriting
Agreement shall inure to the benefit of the Company, the
Underwriters and, with respect to the provisions of Section
10, each director, officer, and controlling person referred to
in Section 10, and their respective successors. Nothing
herein is intended or shall be construed to give to any other
person, firm, or corporation any legal or equitable right,
remedy, or claim under or in respect of any provision in this
Underwriting Agreement. The term "successor" as used in this
Underwriting Agreement shall not include any purchaser, as
such purchaser, of any of the Debentures from any of the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be
mailed or delivered to the Representative at the address set
forth below, or, if to the Company, shall be mailed or
delivered to it c/o IES Utilities Inc., 200 First Street,
S.E., Cedar Rapids, Iowa 52401 Attention: Executive Vice
President.
SECTION 15. Counterparts. This Underwriting
Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of
such counterparts, when so executed and delivered, shall be
deemed to be an original, and all of such counterparts shall,
taken together, constitute one and the same agreement.
___________
The stated interest rate to be borne by the
Debentures and the price to be paid to the Company therefor
(stated as a percentage of the principal amount of the
Debentures), exclusive of accrued interest, if any, to be paid
to the Company from the first day or the fifteenth day, as
specified in Schedule I, of the month in which the Debentures
are issued to the Closing Date, in each case are set forth in
Schedule I hereto. If said interest rate and price and this
Underwriting Agreement are in accordance with your
understanding of our agreement, please indicate your
acceptance thereof in the space provided below for that
purpose; whereupon, this letter and your acceptance shall
constitute a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
As Representative(s) of the Underwriters
By:_______________________________
By:_______________________________
Name:
Title:
Address of Representative(s):
__________________________
_________________________
The foregoing Underwriting Agreement is hereby
accepted as of the date set forth below:
IES UTILITIES INC.
By:_____________________________
Name:
Title:
SCHEDULE I
Underwriting Agreement dated ____________, 199_
Registration Statement (No. 33-__________________)
Securities:
Designation: ___% Junior Subordinated Deferrable Interest
Debentures, Series ___, Due ________________
Principal Amount:
Date of Maturity:
Interest Rate: ___%
Commencement of Interest Accrual:
Purchase Price: ______%
Public Offering Price: ______%
Closing Date: _______________
SCHEDULE II
Principal Amount
Name of Underwriter of Bonds
Total________
EXHIBIT A
[Letterhead of IES Industries Inc.]
[Date]
Re: __% Junior Subordinated Deferrable
Interest Debentures, Series ___
$__________
Due_____________
Ladies and Gentlemen:
I am counsel for IES Industries Inc., the parent
company of IES Utilities Inc. (the "Company") and have
participated in the issuance and sale by the Company to you of
$____________ aggregate principal amount of __% Junior
Subordinated Deferrable Interest Debentures, Series ___ due
_____________ (the "Debentures"), issued under the Company's
Indenture, dated as of _________, 1995, to The First National
Bank of Chicago, as Trustee (the "Trustee") (the "Indenture")
pursuant to an Underwriting Agreement dated as of ________,
199_ between you and the Company (the "Underwriting
Agreement").
In this connection, I have examined, among other
things, the following:
(a) the Registration Statement and the Prospectus
(such terms having the same meanings herein as in the
Underwriting Agreement);
(b) the Articles of Incorporation of the Company
and all amendments thereto, as certified by the Secretary
of State of the State of Iowa;
(c) a Certificate of the Secretary of State or other
appropriate state official certifying as to the good
standing and qualification of the Company to transact
business in the State of Iowa;
(d) the By-laws of the Company, certified by the
Secretary of the Company;
(e) the Indenture;
(f) [certified copies of the Officer's Certificate
of the Company dated __________, 199_, including the
Addendum to the Resolution of the Board setting forth the
terms and conditions of the Debentures approved by the
Executive Vice President dated __________, 199_,
pertaining to the authorization and sale of the
Debentures and related matters];
(g) the Application filed by the Company with the
Federal Energy Regulatory Commission seeking, among other
things, authority for and approval of the issuance and
sale of Debentures and a copy of the Letter of Authority
issued by the Chief Accountant of such Commission, dated
__________, 1995, authorizing and approving the issuance
and sale of the Debentures;
(h) counterparts of the Underwriting Agreement
executed by you and the Company; and
(i) other information, documents, and material
which I deem sufficient along with the foregoing to
support this opinion.
In addition, in connection with this opinion, I have
reviewed various orders and certificates of, and members of
the legal staff of IES Industries Inc. had telephone
conversations with, public officials. I have not examined the
Debentures, except a specimen thereof.
Subject to the foregoing and to the further
exceptions and qualifications set forth below and having
regard to all legal and factual considerations which I deem
relevant and based upon all such other information and
documents furnished to or obtained by me as I believe
necessary to enable me to render this opinion, including
certificates of public officials, I am of the opinion that:
1. The Company has been duly incorporated and is
validly existing and in good standing as a corporation under
the laws of the State of Iowa, with full power and authority
(corporate and other) to own its property and to conduct its
business as presently being conducted all within the State of
Iowa.
2. The Debentures and the Indenture conform in all
material respects to the descriptions thereof in the
Prospectus.
3. The Underwriting Agreement has been duly authorized,
executed and delivered on behalf of the Company.
4. The Debentures have been duly authorized and, when
duly executed, authenticated, issued and delivered to and paid
for by you in accordance with the terms of the Underwriting
Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits and
security provided by the Indenture, enforceable against the
Company in accordance with their terms except as the same may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to
or affecting enforcement of creditors' rights generally, by
general principles of equity (regardless of whether or not
enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair
dealing.
5. The Indenture has been duly and validly authorized
by all necessary corporate action of the Company, has been
duly executed, acknowledged and delivered by the Company and
is a valid and legally binding instrument enforceable against
the Company in accordance with its terms except as the same
may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights
generally, by general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity
or at law) and by an implied covenant of good faith and fair
dealing.
6. The execution and delivery of the Underwriting
Agreement, the consummation of the transactions therein
contemplated and the fulfillment of the terms thereof do not
and will not conflict with, or result in a breach by, the
Company of any of the terms or provisions of, or constitute a
default under, the Articles of Incorporation or By-laws of the
Company or the Indenture, or to the best of my knowledge after
reasonable investigation, any other indenture, mortgage, deed
of trust or other agreement or instrument to which the Company
is a party or by which it or any of its properties are bound.
7. The Chief Accountant of the Federal Energy
Regulatory Commission ("FERC") has authorized the issuance and
sale of the Debentures, which authorization is, to the best of
my knowledge, still in full force and effect; the issuance and
sale of the Debentures to you pursuant to the Underwriting
Agreement is in conformity with the terms of such
authorization; and no other authorization, approval or consent
of any other governmental body is legally required for the
issuance and sale of the Debentures pursuant to the
Underwriting Agreement, except such as have been obtained
under the Securities Act of 1933, as amended ("Securities
Act"), and such as may be required under state securities or
blue sky laws in connection with the purchase and distribution
of the Debentures by you.
8. Except as referred to in the Registration Statement
and Prospectus, to the best of my knowledge, there are no
material or contemplated legal proceedings to which the
Company is or may be a party or of which property of the
Company is or may be subject which depart from the ordinary
routine litigation incident to the kinds of business conducted
by the Company.
9. The documents incorporated by reference in the
Prospectus (other than the financial statements and financial
and statistical data, as to which I express no opinion), when
they were filed with the Securities and Exchange Commission
(the "Commission"), complied as to form in all material
respects with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder of the
Commission; and I have no reason to believe that any of such
documents, when they were so filed, contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such documents were so filed, not misleading.
10. To the best of my knowledge, there are no contracts
or other instruments or documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus
or required to be described in the Registration Statement or
the Prospectus which are not filed or incorporated by
reference or described as required.
I am a member of the bar of the State of Iowa and do
not hold myself out as an expert on the laws of any other
State. The opinion set forth above is solely for the benefit
of the addressees of this letter and may not be relied upon in
any manner by any other person without my prior written
consent, except that Winthrop, Stimson, Putnam & Roberts may
rely on this opinion as to all matters of Iowa law in
rendering their opinions required to be delivered under the
Underwriting Agreement.
Very truly yours,
EXHIBIT B
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[Date]
Re: IES Utilities Inc.
$_________% Junior Subordinated
Deferrable Interest Debentures,
Series_____ Due____
Ladies and Gentlemen:
We are Counsel for IES Utilities Inc. ("Company")
and have acted in that capacity in connection with the
issuance and sale by the Company to you pursuant to the
Underwriting Agreement effective _________, 199_
("Underwriting Agreement") between the Company and you, of
$________in principal amount of ___% Junior Subordinated Deferrable
Interest Debentures, Series __ (the "Debentures"), issued
under the Company's Indenture dated as of ______________,
1995, to _____________, as Trustee (the "Trustee") (the
"Indenture").
We are members of the New York Bar and, for purposes
of this opinion, do not hold ourselves out as experts on the
laws of any jurisdiction other than the State of New York and
the United States of America. We have, with your consent,
relied upon the opinion of even date herewith addressed to you
by Stephen W. Southwick, Counsel for IES Industries Inc., as
to the matters covered in such opinion relating to Iowa law.
We have reviewed said opinion and believe that it is
satisfactory and that you and we are justified in relying
thereon.
We also examined such other documents and questions
of law and satisfied ourselves as to such other matters as we
have deemed necessary in order to enable us to express this
opinion. We have not examined and are expressing no opinion
or belief as to matters relating to the incorporation of the
Company. We also have not examined the Debentures, except a
specimen thereof. As to various questions of fact material to
this opinion, we have relied upon representations and
certificates of officers and representatives of the Company
and statements in the Registration Statement (the terms
"Registration Statement" and "Prospectus," as used herein,
have the same meanings as those words in the Underwriting
Agreement). We have also examined originals, or copies of
originals certified to our satisfaction, of such agreements,
documents, certificates and other instruments, as we have
considered relevant and necessary as a basis for such opinion.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us
as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies.
Subject to the foregoing and to the further
exceptions and qualifications set forth below, we are of the
opinion that:
1. The Indenture has been duly and validly
authorized by all necessary corporate action of the Company,
has been duly executed, acknowledged and delivered by the
Company and is a valid and legally binding instrument
enforceable against the Company in accordance with its terms
except as the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting enforcement of
creditors' rights generally, by general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of
good faith and fair dealing; and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
2. The Debentures have been duly authorized and,
when duly executed, authenticated, issued and delivered to and
paid for by you in accordance with the terms of the
Underwriting Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits
and security provided by the Indenture enforceable against the
Company in accordance with their terms except as the same may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to
or affecting enforcement of creditors' rights generally, by
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair
dealing.
3. The summaries of the terms of the Indenture and
the Debentures contained in the Registration Statement and the
Prospectus fairly describe in all material respects the
provisions thereof required to be described by the
registration statement form.
4. The Underwriting Agreement has been duly
authorized, executed and delivered on behalf of the Company.
5. The execution and delivery of the Underwriting
Agreement, the consummation of the transactions therein
contemplated and the fulfillment of the terms thereof do not
and will not conflict with, or result in a breach by, the
Company of any of the terms or provisions of, or constitute a
default under, the Articles of Incorporation or By-laws of the
Company or to the best of our knowledge, any other indenture,
mortgage, deed of trust or other agreement or instrument to
which the Company is a party or by which it or any of its
properties are bound. As used in this paragraph 5, the phrase
"to the best of our knowledge after reasonable investigation"
is intended to mean the actual knowledge or information known
by the lawyers in our firm who have been principally involved
in the transactions contemplated by the Underwriting
Agreement.
6. The Chief Accountant of the Federal Energy
Regulatory Commission has authorized the issuance and sale of
the Debentures, which authorization is, to the best of our
knowledge, still in full force and effect; the issuance and
sale of the Debentures to you pursuant to the Underwriting
Agreement is in conformity with the terms of such
authorization; and no other authorization, approval or consent
of any other federal commission or regulatory authority is
legally required for the issuance and sale of the Debentures
pursuant to the Underwriting Agreement, except such as have
been obtained under the Securities Act of 1933, as amended
("Securities Act") or the Trust Indenture Act.
7. To the best of our knowledge, the Registration
Statement is, at the date hereof, effective under the
Securities Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for a stop order with respect thereto have been
instituted or are pending or threatened under the Securities
Act; the Registration Statement, at the time of its
effectiveness, and the Prospectus, at the time first filed
with the Securities and Exchange Commission ("Commission")
pursuant to Rule 424 under the Securities Act, complied as to
form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act, and the applicable
rules and regulations of the Commission thereunder (except
that we express no opinion as to the financial statements or
other financial or statistical data included or incorporated
by reference therein or as to the Form T-1 filed as an exhibit
to the Registration Statement).
8. The Company and IES Industries Inc. are exempt
from regulation under the Public Utility Holding Company Act
of 1935, as amended, except under Section 9(a)(2) thereof.
9. To the best of our knowledge, there are no
contracts or other instruments or documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
In passing upon the forms of the Registration
Statement and the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included or incorporated by
reference in the Registration Statement and the Prospectus and
take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraph 3 above.
In connection with the preparation of the Registration
Statement and the Prospectus, we have had discussions with
certain of the Company's officers and representatives, with
other counsel for the Company, with your counsel and with
Arthur Andersen LLP, the independent certified public
accountants who examined certain of the financial statements
included or incorporated by reference in the Registration
Statement. Our examination of the Registration Statement and
the Prospectus and our discussions did not disclose to us any
information that gives us reason to believe that the
Registration Statement, at the time it became effective,
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, at the time first filed with the
Commission pursuant to Rule 424 under the Securities Act and
at the date hereof, contained or contains 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. We do not express any opinion or belief as to the
financial statements or other financial or statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus. We do not express any opinion as
to the statements contained in the Form T-1 filed as an
exhibit to the Registration Statement.
The opinion set forth above is solely for the
benefit of the addressees hereof in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be quoted or furnished to, or relied
upon in any manner by, any other person or utilized for any
other purpose without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
EXHIBIT C
[Letterhead of Dorsey & Whitney]
[Date]
Re: IES Utilities Inc.
$____________ % Junior Subordinated
Deferrable Interest Debentures,
Series________________
Ladies and Gentlemen:
We have acted as your counsel in connection with the
issuance and sale by IES Utilities, Inc. (the "Company") to
you pursuant to the Underwriting Agreement dated ______,
199_ ("Underwriting Agreement") between the Company and you,
of $___________ in principal amount of ___ % Junior Subordinated
Deferrable Interest Debentures, Series ___ (the "Debentures"),
issued under the Company's Indenture, dated as of _______ 1,
199_, to ____________________, as Trustee (the "Trustee")
(the "Indenture"). This opinion is being delivered pursuant
to subsection (d) of Section 8 of the Underwriting Agreement.
We have examined such documents and reviewed such
questions of law as we have considered necessary and
appropriate for the purposes of this opinion. [Assumptions to
be stated here, including authenticity, signatures,
conformity, legal capacity, due incorporation, valid
existence, good standing, power and authority, mutuality of
obligations, title to real properties, adequacy of interest in
other property, UCC matters, due filing and recording,
adequacy of property descriptions and accuracy of references.]
[Reliance as to factual and other matters to be stated here.]
Based upon the foregoing, we are of the opinion
that:
1. the Company is a validly organized and existing
corporation in good standing under the laws of the State of
Iowa;
2. the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
3. the Indenture has been duly and validly
authorized by all necessary corporate action of the Company
and has been duly executed, acknowledged and delivered by the
Company; the Indenture is a valid and legally binding
instrument enforceable against the Company in accordance with
its terms, except as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws relating to or affecting enforcement of
creditors' rights generally, by general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of
good faith and fair dealing; and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended
("Trust Indenture Act");
4. the Debentures have been duly authorized and,
when duly executed, authenticated, issued and delivered to and
paid for by you in accordance with the terms of the
Underwriting Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits
and security provided by the Indenture, except as the same may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to
or affecting enforcement of creditors' rights generally, by
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair
dealing;
5. the Debentures and the Indenture conform as to
legal matters with the statements concerning them made in the
Prospectus, and such statements accurately set forth the
matters respecting the Debentures and the Indenture required
to be set forth in the Prospectus;
6. the Chief Accountant of the FERC has authorized
the issuance and sale of the Debentures, which authorization
is, to the best of our knowledge, still in full force and
effect; the issuance and sale of the Debentures to you
pursuant to the Underwriting Agreement is in conformity with
the terms of such authorization; and no other authorization,
approval or consent of any other federal commission or
regulatory authority is legally required for the issuance and
sale of the Debentures pursuant to the Underwriting Agreement,
except such as have been obtained under the Securities Act of
1933, as amended ("Securities Act"), or the Trust Indenture
Act;
7. the Registration Statement has become effective
under the Securities Act, and, to the best of our knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for a stop order
with respect thereto have been instituted or are pending or
threatened under the Securities Act;
8. the Registration Statement and the Prospectus
comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and the applicable rules and regulations of the SEC thereunder
(except that we express no opinion as to the financial
statements and financial or statistical data contained therein
or as to the Form T-1 filed as an exhibit to the Registration
Statement); and
9. the Company is a subsidiary of IES Industries
Inc., an Iowa corporation, and both are exempt from regulation
under the Public Utility Holding Company Act of 1935, as
amended, except under Section 9(a)(2) thereof.
In the course of the preparation of the Registration
Statement and the Prospectus, we have considered the
information set forth therein in light of the matters required
to be set forth therein, and we have participated in
conferences with officers and representatives of the Company,
including its counsel and independent public accountants,
during the course of which the contents of the Registration
Statement and the Prospectus and related matters were
discussed. We have not independently checked the accuracy or
completeness of, or otherwise verified, and accordingly are
not passing upon, and do not assume responsibility for, the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus (except as
expressly stated in paragraph 5 of this letter); and we have
relied as to materiality, to a large extent, upon the judgment
of officers and representatives of the Company. However, as a
result of such consideration and participation, nothing has
come to our attention which causes us to believe that the
Registration Statement at the time it became effective,
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
(except that we express no belief as to the financial
statements and financial and statistical data contained
therein), or that the Prospectus, at the time first filed with
the SEC pursuant to Rule 424 under the Securities Act and at
the date hereof, contained or contains 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 (except that we express no belief as to the
financial statements and financial and statistical data
contained therein). We do not express any opinion as to the
statements contained in the Form T-1 filed as an exhibit to
the Registration Statement.
The opinion set forth above is solely for the
benefit of the addressees of this letter and may not be relied
upon in any manner by, nor may copies be delivered to, any
other person without our prior written consent.
Very truly yours,
DORSEY & WHITNEY
EXHIBIT D
Pursuant to subsection (e) of Section 8 of the
Underwriting Agreement, Arthur Andersen LLP shall furnish a
letter to the Representative to the effect that:
(1) They are independent certified public accountants
with respect to the Company within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder;
(2) In their opinion, the financial statements and
schedules audited by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the related published
rules and regulations thereunder;
(3) On the basis of performing the procedures specified
by the American Institute of Certified Public Accountants for
a review of interim financial information as described in SAS
No. 71, Interim Financial Information, on the latest available
unaudited financial statements included or incorporated by
reference in the Registration Statement, a reading of the
latest available interim unaudited financial statements of the
Company, the minutes of the meetings of the Board of
Directors, the Executive Committee thereof and the
stockholders of the Company, respectively, since the close of
the most recent audited fiscal year to a specified date not
more than five business days prior to the Closing Date, and
inquiries of officials of the Company who have responsibility
for the respective company's financial and accounting matters
(it being understood that the foregoing procedures do not
constitute an audit made in accordance with generally accepted
auditing standards and that they would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and, accordingly, that Arthur Andersen LLP makes
no representation as to the sufficiency of such procedures for
the several Underwriters' purposes), nothing has come to their
attention which caused them to believe that
(a) the unaudited financial statements included or
incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the related published rules and regulations
thereunder;
(b) the audited and unaudited selected financial
information and supplemental financial information and ratios
of earnings to fixed charges included or incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable disclosure requirements
of Regulation S-K promulgated under the Securities Act;
(c) any material modifications should be made to
said unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(d) for the period from January 1, 1994 to the date
of the latest available unaudited financial statements of the
Company, there was any decrease in operating revenues,
operating income or net income as compared with the
corresponding period in the preceding year, except in all
instances for decreases which the Prospectus discloses have
occurred or may occur or except as set forth in such letter;
and
(e) at a specified date not more than five days
prior to the Closing Date there was any change in the capital
stock or long-term debt of the Company, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus
discloses have occurred or may occur, for declarations of
dividends, for the repayment or redemption of long-term debt,
for the amortization of premium or discount on long-term debt,
for the redemption or purchase of preferred stock for sinking
fund purposes, for any increases in long-term debt in respect
of previously issued pollution control revenue bonds, or for
changes or decreases as set forth in such letter, identifying
the same and specifying the amount thereof.
(4) In addition to the audit referred to in their
reports included or incorporated by reference in the
Prospectus and the inspection of minute books, inquiries and
other limited procedures referred to in paragraph 3 above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
percentages and financial information including certain pro
forma information specified by the Representative which are
derived from the general accounting records of the Company
which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the
Representative or in documents incorporated by reference in
the Prospectus specified by the Representative and agreed to
by the Company, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and have found them to be in agreement.
EXHIBIT 4(i)
__________________________________________
IES UTILITIES INC.
TO
THE FIRST NATIONAL BANK
OF CHICAGO, Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of __________, 1995
__________________________________________
INDENTURE, dated as _____________, 1995 between IES
UTILITIES INC., a corporation duly organized and existing
under the laws of the State of Iowa (herein called the
"Company"), having its principal office at 200 First Street
S.E., Cedar Rapids, Iowa 52401, and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association organized and existing
under the laws of the united States of America, having its
principal corporate trust office at One First National Plaza,
Suite 0126, Chicago, Illinois 60670-0126, as Trustee (herein
called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as
contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been
performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which
are defined in the Trust Indenture Act, either directly or
by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) 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.
Certain terms, used principally in Article Nine, are
defined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
through one or more intermediaries, whether through the
ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person (other than
the Company or an Affiliate of the Company) authorized by the
Trustee to act on behalf of the Trustee to authenticate one or
more series of Securities.
"Authorized Officer" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any
Assistant Treasurer or any other duly authorized officer of
the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or
other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may
be otherwise specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commis
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any
time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then
the body, if any, performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at
the date of execution and delivery of this Indenture is
located at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126.
"corporation" means a corporation, association, compa
ny, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "interest" with respect to a
Discount Security means interest, if any, borne by such
Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States as at the
time shall be legal tender for the payment of public and
private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in
Dollars, Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency,
such other obligations or instruments as shall be specified
with respect to such Securities, as contemplated by Section
301.
"Event of Default" has the meaning specified in
Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations
the timely payment of principal of and interest on
which are unconditionally guaranteed by, the
United States entitled to the benefit of the full
faith and credit thereof; and
(b) certificates, depositary receipts or
other instruments which evidence a direct
ownership interest in obligations described in
clause (a) above or in any specific interest or
principal payments due in respect thereof;
provided, however, that the custodian of such
obligations or specific interest or principal
payments shall be a bank or trust company (which
may include the Trustee or any Paying Agent)
subject to Federal or state supervision or
examination with a combined capital and surplus of
at least $50,000,000; and provided, further, that
except as may be otherwise required by law, such
custodian shall be obligated to pay to the holders
of such certificates, depositary receipts or other
instruments the full amount received by such
custodian in respect of such obligations or
specific payments and shall not be permitted to
make any deduction therefrom.
"Holder" means a Person in whose name a Security
is registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time
be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the
terms of particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an
installment of interest on such Security.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security or an installment of principal becomes due and
payable as provided in such Security or in this
Indenture, whether at the Stated Maturity, by
declaration of acceleration, upon call for redemption
or otherwise.
"Officer's Certificate" means a certificate signed
by an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to
Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for
cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant
to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and
delivered pursuant to this Indenture, other than
any such Securities in respect of which there
shall have been presented to the Trustee proof
satisfactory to it and the Company that such
Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether or not
the Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a
quorum is present at a meeting of Holders of
Securities,
(x) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate
of the Company or of such other obligor (unless
the Company, such Affiliate or such obligor owns
all Securities Outstanding under this Indenture,
or all Outstanding Securities of each such series
and each such Tranche, as the case may be,
determined without regard to this clause (x))
shall be disregarded and deemed not to be Out
standing, except that, in determining whether the
Trustee shall be protected in relying upon any
such request, demand, authorization, direction,
notice, consent or waiver or upon any such
determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned
shall be so disregarded; provided, however, that
Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other
obligor;
(y) the principal amount of a 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 802; and
(z) the principal amount of any Security
which is denominated in a currency other than
Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall
be the amount of Dollars which could have been
purchased by the principal amount (or, in the case
of a Discount Security, the Dollar equivalent on
the date determined as set forth below of the
amount determined as provided in (y) above) of
such currency or composite currency evidenced by
such Security, in each such case certified to the
Trustee in an Officer's Certificate, based (1) on
the average of the mean of the buying and selling
spot rates quoted by three banks which are members
of the New York Clearing House Association
selected by the Company in effect at 11:00 A.M.
(New York time) in The City of New York on the
fifth Business Day preceding any such
determination or (2) if on such fifth Business Day
it shall not be possible or practicable to obtain
such quotations from such three banks, on such
other quotations or alternative methods of deter
mination which shall be as consistent as
practicable with the method set forth in (1)
above;
provided, further, that, in the case of any Security
the principal of which is payable from time to time
without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding
at any time for all purposes of this Indenture shall be
the original principal amount thereof less the
aggregate amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal
of and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of
Securities of a series from time to time any or all of
the specific terms of which Securities, including
without limitation the rate or rates of interest, if
any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its
agents upon the issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, trust or unincorporated
organization or any Governmental Authority thereof.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the
place or places, specified as contemplated by Section
301, at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the
Securities of such series or Tranche are payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a
portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this
definition, any Security authenticated and delivered
under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be
deemed (to the extent lawful) to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on
any Interest Payment Date on the Securities of any
series means the date specified for that purpose as
contemplated by Section 301.
"Required Currency" has the meaning specified in
Section 311.
"Responsible Officer", when used with respect to
the Trustee, means any officer of the Trustee assigned
by the Trustee to administer its corporate trust
matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means
any securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other
than non-recourse obligations and the indebtedness
issued under this Indenture) of, or guaranteed or
assumed by, the Company for borrowed money, including
both senior and subordinated indebtedness for borrowed
money (other than the Securities), or for the payment
of money relating to any lease which is capitalized on
the consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted
accounting principles as in effect from time to time,
or evidenced by bonds, debentures, notes or other
similar instruments, and in each case, amendments,
renewals, extensions, modifications and refundings of
any such indebtedness or obligations, whether existing
as of the date of this Indenture or subsequently
incurred by the Company.
"Special Record Date" for the payment of any
Defaulted Interest on the Securities of any series
means a date fixed by the Trustee pursuant to Section
307.
"Stated Interest Rate" means a rate (whether fixed
or variable) at which an obligation by its terms is
stated to bear simple interest. Any calculation or
other determination to be made under this Indenture by
reference to the Stated Interest Rate on a Security
shall be made without regard to the effective interest
cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost
to the Company of, any other indebtedness the Company's
obligations in respect of which are evidenced or
secured in whole or in part by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal
of such obligation or such installment of principal or
interest is stated to be due and payable (without
regard to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Tranche" means a group of Securities which (a)
are of the same series and (b) have identical terms
except as to principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, as amended, or any
successor statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee"
in the first paragraph of this Indenture until a
successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"United States" means the United States of
America, its Territories, its possessions and other
areas subject to its political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in
this Indenture, upon any application or request by the
Company to the Trustee to take any action under any
provision of this Indenture, the Company shall, if
requested by the Trustee, furnish to the Trustee an
Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any
such application or request as to which the furnishing
of such documents is specifically required by any
provision of this Indenture relating to such particular
application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing
such certificate or opinion has read such covenant
or condition and the definitions herein relating
thereto;
(b) 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;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the
opinion of each such Person, such condition or
covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are
required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified
or covered by only one document, but one such Person
may certify or give an opinion with respect to some
matters and one or more other such Persons as to other
matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of
the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any
such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an
officer or officers of the Company stating that the
information with respect to such factual matters is in
the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should
know, that the certificate or opinion or
representations with respect to such matters are
erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be
substituted therefor in corrected form with the same
force and effect as if originally filed in the
corrected form and, irrespective of the date or dates
of the actual execution and/or delivery thereof, such
substitute document or instrument shall be deemed to
have been executed and/or delivered as of the date or
dates required with respect to the document or
instrument for which it is substituted. Anything in
this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that
action has been taken by or at the request of the
Company which could not have been taken had the
original document or instrument not contained such
error or omission, the action so taken shall not be
invalidated or otherwise rendered ineffective but shall
be and remain in full force and effect, except to the
extent that such action was a result of willful
misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued
under the authority of such defective document or
instrument shall nevertheless be the valid obligations
of the Company entitled to the benefits of this
Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be
made, 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
or, alternatively, may be embodied in and
evidenced by the record of Holders voting in favor
thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders
duly called and held in accordance with the
provisions of Article Thirteen, or a combination
of such instruments and any such record. Except
as herein otherwise expressly provided, such
action shall become effective when such instrument
or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or
instruments and any such record (and the action
embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders
signing such instrument or instruments and so
voting at any such meeting. Proof of execution of
any such instrument or of a writing appointing any
such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901)
conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders
shall be proved in the manner provided in Section
1306.
(b) 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 or may
be proved in any other manner which the Trustee
and the Company deem sufficient. Where such
execution is by a signer acting in a capacity
other than his individual capacity, such
certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The principal amount (except as
otherwise contemplated in clause (y) of the
proviso to the definition of Outstanding) and
serial numbers of Securities held by any Person,
and the date of holding the same, shall be proved
by the Security Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future
Holder of the same Security and the Holder of
every Security issued upon the registration of
transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustee or the Com
pany in reliance thereon, whether or not notation
of such action is made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated
by such instruments, any such instrument executed
and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such
Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which
such instrument was proven.
(f) Securities of any series, or any Tranche
thereof, authenticated and delivered after any Act
of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof,
so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be
prepared and executed by the Company and
authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series
or Tranche.
(g) If the Company shall solicit from
Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act,
the Company may, at its option, by Company Order,
fix in advance a record date for the determination
of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no
obligation to do so. 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 the record date shall be deemed to be
Holders for the purposes of determining whether
Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed
or consented to such request, demand,
authorization, direction, notice, consent, waiver
or other Act, and for that purpose the Outstanding
Securities shall be computed as of the record
date.
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization,
direction, notice, consent, election, waiver or Act of
Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or
filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any
Holder, shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in
writing and delivered personally to an officer or other
responsible employee of the addressee, or transmitted
by facsimile transmission, telex or other direct
written electronic means to such telephone number or
other electronic communications address as the parties
hereto shall from time to time designate, or
transmitted by registered mail, charges prepaid, to the
applicable address set opposite such party's name below
or to such other address as either party hereto may
from time to time designate:
If to the Trustee, to:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
Telephone: (312) 407-1895
Telecopy: (312) 407-1078
If to the Company, to:
IES Utilities Inc.
IES Tower
200 First Street S.E.
Cedar Rapids, Iowa 52401
Attention: General Counsel
Telephone: (319) 398-8142
Telecopy: (319) 398-4533
Any communication contemplated herein shall
be deemed to have been made, given, furnished and filed
if personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided
herein, where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in
writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of
such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such
notice.
In case by reason of the suspension of
regular mail service or by reason of any other cause it
shall be impracticable to give such notice to Holders
by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive
such notice, either before or after the event otherwise
to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the
validity of any action taken in reliance upon such
waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this
Indenture by the Company and Trustee shall bind their
respective successors and assigns, whether so expressed
or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or
the Securities shall be held to 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 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other
than the parties hereto, their successors hereunder,
the Holders, and so long as the notice described in
Section 1513 hereof has not been given, the holders of
Senior Indebtedness, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws
of the State of New York, except to the extent that the
law of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security
shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this
Indenture or of the Securities other than a provision
in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series
or Tranche, which specifically states that such provi
sion shall apply in lieu of this Section) payment of
interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place
of Payment, except that if such Business Day is in the
next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day in each
case with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the
Stated Maturity, and, if such payment is made or duly
provided for on such Business Day, no interest shall
accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business
Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series
shall be in substantially the form or forms thereof
established in the indenture supplemental hereto
establishing such series or in a Board Resolution
establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or
Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other
variations as are required or permitted by this
Indenture, and may have such letters, numbers or other
marks of identification and such legends or
endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by
their execution of the Securities. If the form or
forms of Securities of any series are established in a
Board Resolution or in an Officer's Certificate
pursuant to a Board Resolution, such Board Resolution
and Officer's Certificate, if any, shall be delivered
to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner
as shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
The First National Bank of Chicago, Trustee
By:______________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; 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. Prior to the authentication and delivery of
Securities of any series there shall be established by
specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to
a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such
series (which shall distinguish the Securities of
such series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may
be authenticated and delivered under this
Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406
or 1206 and, except for any Securities which,
pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other
than the Persons in whose names such Securities
(or one or more Predecessor Securities) are
registered at the close of business on the Regular
Record Date for such interest;
(d) the date or dates on which the principal
of the Securities of such series, or any Tranche
thereof, is payable or any formula or other method
or other means by which such date or dates shall
be determined, by reference to an index or other
fact or event ascertainable outside of this
Indenture or otherwise (without regard to any
provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the
Securities of such series, or any Tranche thereof,
shall bear interest, if any (including the rate or
rates at which overdue principal shall bear
interest, if different from the rate or rates at
which such Securities shall bear interest prior to
Maturity, and, if applicable, the rate or rates at
which overdue premium or interest shall bear
interest, if any), or any formula or other method
or other means by which such rate or rates shall
be determined, by reference to an index or other
fact or event ascertainable outside of this
Indenture or otherwise; the date or dates from
which such interest shall accrue; the Interest
Payment Dates on which such interest shall be
payable and the Regular Record Date, if any, for
the interest payable on such Securities on any
Interest Payment Date; the right of the Company,
if any, to extend the interest payment periods and
the duration of any such extension as contemplated
by Section 312; and the basis of computation of
interest, if other than as provided in Section
310;
(f) the place or places at which or methods
by which (1) the principal of and premium, if any,
and interest, if any, on Securities of such
series, or any Tranche thereof, shall be payable,
(2) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected,
(3) exchanges of Securities of such series, or any
Tranche thereof, may be effected and (4) notices
and demands to or upon the Company in respect of
the Securities of such series, or any Tranche
thereof, and this Indenture may be served; the
Security Registrar and any Paying Agent or Agents
for such series or Tranche; and if such is the
case, that the principal of such Securities shall
be payable without presentment or surrender
thereof;
(g) the period or periods within which, or
the date or dates on which, the price or prices at
which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the
option of the Company and any restrictions on such
redemptions, including but not limited to a
restriction on a partial redemption by the Company
of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities
from any national exchange;
(h) the obligation or obligations, if any,
of the Company to redeem or purchase the
Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory
redemption provisions or at the option of a Holder
thereof and the period or periods within which or
the date or dates on which, the price or prices at
which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of
such series, or any Tranche thereof, shall be
issuable if other than denominations of $1,000 and
any integral multiple thereof;
(j) the currency or currencies, including
composite currencies, in which payment of the
principal of and premium, if any, and interest, if
any, on the Securities of such series, or any
Tranche thereof, shall be payable (if other than
in Dollars);
(k) if the principal of or premium, if any,
or interest, if any, on the Securities of such
series, or any Tranche thereof, 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
period or periods within which, and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any,
or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the
Company or a Holder thereof, in securities or
other property, the type and amount of such
securities or other property, or the formulary or
other method or other means by which such amount
shall be determined, and the period or periods
within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series, or any
Tranche thereof, may be determined with reference
to an index or other fact or event ascertainable
outside of this Indenture, the manner in which
such amounts shall be determined to the extent not
established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of ac
celeration of the Maturity thereof pursuant to
Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to
the Securities of such series, and any covenants
of the Company for the benefit of the Holders of
the Securities of such series, or any Tranche
thereof, in addition to those set forth in Article
Six;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof,
may be converted into or exchanged for shares of
capital stock or other securities of the Company
or any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Eligible
Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a
currency other than Dollars or in a composite
currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after
the satisfaction and discharge thereof as provided
in Section 701;
(r) if the Securities of such series, or any
Tranche thereof, are to be issued in global form,
(1) any limitations on the rights of the Holder or
Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer
thereof, (2) any limitations on the rights of the
Holder or Holders thereof to obtain certificates
therefor in definitive form in lieu of temporary
form and (3) any and all other matters incidental
to such Securities;
(s) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto
which are not specifically addressed in a
supplemental indenture as contemplated by clause
(g) of Section 1201;
(t) to the extent not established pursuant
to clause (r) of this paragraph, any limitations
on the rights of the Holders of the Securities of
such Series, or any Tranche thereof, to transfer
or exchange such Securities or to obtain the
registration of transfer thereof; and if a service
charge will be made for the registration of
transfer or exchange of Securities of such series,
or any Tranche thereof, the amount or terms
thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series, or any
Tranche thereof; and
(v) any other terms of the Securities of
such series, or any Tranche thereof, not
inconsistent with the provisions of this
Indenture.
The Securities of each series, or any Tranche
thereof, shall be subordinated in the right of payment
to Senior Indebtedness as provided in Article Fifteen.
With respect to Securities of a series
subject to a Periodic Offering, the indenture
supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate
pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general
terms or parameters for Securities of such series and
provide either that the specific terms of Securities of
such series, or any Tranche thereof, shall be specified
in a Company Order or that such terms shall be
determined by the Company or its agents in accordance
with procedures specified in a Company Order as
contemplated by clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
or any Tranche thereof, the Securities of each series
shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
or any Tranche thereof, the Securities shall be
executed on behalf of the Company by an Authorized
Officer and may have the corporate seal of the Company
affixed thereto or reproduced thereon and attested by
any other Authorized Officer. The signature of any or
all of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers of the Company shall bind
the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or
did not hold such offices at the date of such
Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee
of:
(a) the instrument or instruments
establishing the form or forms and terms of such
series, as provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities
and, to the extent that the terms of such
Securities shall not have been established in an
indenture supplemental hereto or in a Board
Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201
and 301, either (1) establishing such terms or (2)
in the case of Securities of a series subject to a
Periodic Offering, specifying procedures, accept
able to the Trustee, by which such terms are to be
established (which procedures may provide, to the
extent acceptable to the Trustee, for
authentication and delivery pursuant to oral or
electronic instructions from the Company or any
agent or agents thereof, which oral instructions
are to be promptly confirmed electronically or in
writing), in either case in accordance with the
instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed
on behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect
that:
(1) the form or forms of such
Securities have been duly authorized by the
Company and have been established in
conformity with the provisions of this
Indenture;
(2) the terms of such Securities
have been duly authorized by the Company and
have been established in conformity with the
provisions of this Indenture; and
(3) such Securities, when
authenticated and delivered by the Trustee
and issued and delivered by the Company in
the manner and subject to any conditions
specified in such Opinion of Counsel, will
have been duly issued under this Indenture
and will constitute valid and legally binding
obligations of the Company, entitled to the
benefits provided by this Indenture, and
enforceable in accordance with their terms,
subject, as to enforcement, to laws relating
to or affecting generally the enforcement of
creditors' rights, including, without
limitation, bankruptcy and insolvency laws
and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law);
provided, however, that, with respect to Securities of
a series subject to a Periodic Offering, the Trustee
shall be entitled to receive such Opinion of Counsel
only once at or prior to the time of the first
authentication of such Securities (provided that such
Opinion of Counsel addresses the authentication and
delivery of all Securities of such series) and that in
lieu of the opinions described in clauses (2) and (3)
above Counsel may opine that:
(x) when the terms of such Securities shall
have been established pursuant to a Company Order
or Orders or pursuant to such procedures
(acceptable to the Trustee) as may be specified
from time to time by a Company Order or Orders,
all as contemplated by and in accordance with the
instrument or instruments delivered pursuant to
clause (a) above, such terms will have been duly
authorized by the Company and will have been
established in conformity with the provisions of
this Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or
specified procedures referred to in paragraph (x)
above and issued and delivered by the Company in
the manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by the
Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to laws
relating to or affecting generally the enforcement
of creditors' rights, including, without
limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of
whether such enforceability is considered in a
proceeding in equity or at law).
With respect to Securities of a series
subject to a Periodic Offering, the Trustee may
conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms
thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and
other documents delivered pursuant to Sections 201 and
301 and this Section, as applicable, at or prior to the
time of the first authentication of Securities of such
series unless and until such opinion or other documents
have been superseded or revoked or expire by their
terms. In connection with the authentication and
delivery of Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to
assume that the Company's instructions to authenticate
and deliver such Securities do not violate any rules,
regulations or orders of any Governmental Authority
having jurisdiction over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required
to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will 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.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities,
or any Tranche thereof, each Security shall be dated
the date of its authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities,
or any Tranche thereof, no Security shall be entitled
to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee
or its agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled
to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been
authenticated and delivered hereunder to the Company,
or any Person acting on its behalf, but shall never
have been issued and sold by the Company, and the
Company shall deliver such Security to the Security
Registrar for cancellation as provided in Section 309
together with a written statement (which need not
comply with Section 102 and need not be accompanied by
an Officer's Certificate and an Opinion of Counsel)
stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never
be entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, or any Tranche thereof, the
Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the defi
nitive Securities in lieu of which they are issued,
with such appropriate insertions, omissions,
substitutions and other variations as the officers
executing such Securities may determine, as evidenced
by their execution of such Securities; provided,
however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any
series, or any Tranche thereof, after the preparation
of definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section
602 in a Place of Payment for such Securities. Upon
such surrender of temporary Securities, the Company
shall, except as aforesaid, execute and the Trustee
shall authenticate and deliver in exchange therefor
definitive Securities of the same series and Tranche,
of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove
provided, temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche
and of like tenor authenticated and delivered here
under.
SECTION 305. Registration, Registration of Transfer
and Exchange.
The Company shall cause to be kept in each
office designated pursuant to Section 602, with respect
to the Securities of each series or any Tranche
thereof, a register (all registers kept in accordance
with this Section being collectively referred to as the
"Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities of
such series or Tranche and the registration of transfer
thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of
each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more
of its offices as an office in which a register with
respect to the Securities of one or more series, or any
Tranche or Tranches thereof, shall be maintained, and
the Company may designate itself the Security Registrar
with respect to one or more of such series. The
Security Register shall be open for inspection by the
Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series
or Tranche at the office or agency of the Company
maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall
execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same
series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same
series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount, upon surren
der of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any
registration of transfer or exchange of Securities
shall be valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by
a written instrument of transfer in form satisfactory
to the Company, the Trustee or the Security Registrar,
as the case may be, duly executed by the Holder thereof
or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series,
or any Tranche thereof, no service charge shall be made
for any registration of transfer or exchange of
Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any regis
tration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 406 or 1206 not
involving any transfer.
The Company shall not be required to execute
or to provide for the registration of transfer of or
the exchange of (a) Securities of any series, or any
Tranche thereof, during a period of 15 days immediately
preceding the date notice is to be given identifying
the serial numbers of the Securities of such series or
Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in
part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to
the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a
new Security of the same series and Tranche, and of
like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company
and the Trustee (a) evidence to their satisfaction of
the ownership of and the destruction, loss or theft of
any Security and (b) such security or indemnity as may
be reasonably required by them to save each of them and
any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that
such Security is held by a Person purporting to be the
owner of such Security, the Company shall execute and
the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new
Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any
such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new
Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all
other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any
series, or any Tranche thereof, interest on any
Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for
such interest.
Subject to Section 312, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose
names the Securities of such series (or their
respective Predecessor Securities) are registered
at the close of business on a date (herein called
a "Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of
such series and the date of the proposed payment,
and at the same time the Company shall deposit
with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money
when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record
Date and, in the name and at the expense of the
Company, shall promptly cause notice of the
proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of
Securities of such series at the address of such
Holder as it appears in the Security Register, not
less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose
names the Securities of such series (or their
respective Predecessor Securities) are registered
at the close of business on such Special Record
Date.
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with
the requirements of any securities exchange on
which such Securities may be listed, and upon such
notice as may be required by such exchange, if,
after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose
name such Security is registered as the absolute owner
of such Security for the purpose of receiving payment
of principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall,
if surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and,
if not theretofore canceled, shall be promptly canceled
by the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall
be promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in
this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance
with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar
shall promptly deliver a certificate of disposition to
the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that
canceled Securities be returned to it. The Security
Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this
Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, or any
Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and on the basis of
the actual number of days elapsed within any month in
relation to the deemed 30 days of such month.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series,
or any Tranche thereof, denominated in any currency
other than Dollars or in a composite currency (the "Re
quired Currency"), except as otherwise specified with
respect to such Securities as contemplated by Section
301, the obligation of the Company to make any payment
of the principal thereof, or the premium, if any, or
interest, if any, thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by
the Trustee, in any currency other than the Required
Currency, except to the extent that such tender or
recovery shall result in the Trustee timely holding the
full amount of the Required Currency then due and
payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee
may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The
costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctua
tion, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in
the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be
liable therefor except in the case of its negligence or
willful misconduct.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of
one or more series, or Tranches thereof, if so
specified as contemplated by Section 301 with respect
to such Securities and upon such terms as may be
specified as contemplated by Section 301 with respect
to such Securities.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche
thereof, which are redeemable before their Stated
Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as con
templated by Section 301 for Securities of such series
or Tranche) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or
an Officer's Certificate. The Company shall, at least
45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of such
Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of
any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture
or (b) pursuant to an election of the Company which is
subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with
an Officer's Certificate evidencing compliance with
such restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any
series, or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected
by the Security Registrar from the Outstanding
Securities of such series or Tranche not previously
called for redemption, by such method as shall be
provided for any particular series or Tranche, or, in
the absence of any such provision, by such method of
random selection as the Security Registrar shall deem
fair and appropriate and which may, in any case,
provide for the selection for redemption of portions
(equal to the minimum authorized denomination for
Securities of such series or Tranche or any integral
multiple thereof) of the principal amount of Securities
of such series or Tranche of a denomination larger than
the minimum authorized denomination for Securities of
such series or Tranche; provided, however, that if, as
indicated in an Officer's Certificate, the Company
shall have offered to purchase all or any principal
amount of the Securities then Outstanding of any
series, or any Tranche thereof, and less than all of
such Securities as to which such offer was made shall
have been tendered to the Company for such purchase,
the Security Registrar, if so directed by Company
Order, shall select for redemption all or any principal
amount of such Securities which have not been so
tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the
Securities selected for redemption and, in the case of
any Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating
to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more
than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of
any series or Tranche are to be redeemed, the
identification of the particular Securities to be
redeemed and the portion of the principal amount
of any Security to be redeemed in part,
(d) that on the Redemption Date the
Redemption Price, together with accrued interest,
if any, to the Redemption Date, will become due
and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such
Securities are to be surrendered for payment of
the Redemption Price and accrued interest, if any,
unless it shall have been specified as
contemplated by Section 301 with respect to such
Securities that such surrender shall not be
required,
(f) that the redemption is for a
sinking or other fund, if such is the case, and
(g) such other matters as the Company
shall deem desirable or appropriate.
Unless otherwise specified with respect to
any Securities in accordance with Section 301, with
respect to any notice of redemption of Securities at
the election of the Company, unless, upon the giving of
such notice, such Securities shall be deemed to have
been paid in accordance with Section 701, such notice
may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of
and premium, if any, and interest, if any, on such
Securities and that if such money shall not have been
so received such notice shall be of no force or effect
and the Company shall not be required to redeem such
Securities. In the event that such notice of
redemption contains such a condition and such money is
not so received, the redemption shall not be made and
within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption
was given, that such money was not so received and such
redemption was not required to be made, and the Paying
Agent or Agents for the Securities otherwise to have
been redeemed shall promptly return to the Holders
thereof any of such Securities which had been
surrendered for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the
name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by
the Security Registrar in the name and at the expense
of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in
such notice having been satisfied, the Securities or
portions thereof so to be redeemed shall, on the
Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after
such date (unless, in the case of an unconditional
notice of redemption, the Company shall default in the
payment of the Redemption Price and accrued interest,
if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in
accordance with such notice, such Security or portion
thereof shall be paid by the Company at the Redemption
Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect
to such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest
on any Security the Stated Maturity of which
installment is on or prior to the Redemption Date shall
be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the
close of business on the related Regular Record Date
according to the terms of such Security and subject to
the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is
to be redeemed only in part at a Place of Payment
therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge,
a new Security or Securities of the same series and
Tranche, of any authorized denomination requested by
such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of
the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund
payment provided for by the terms of Securities of any
series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment
in excess of such minimum amount provided for by the
terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of
Securities of any series, or any Tranche thereof, the
cash amount of any sinking fund payment may be subject
to reduction as provided in Section 502. Each sinking
fund payment shall be applied to the redemption of
Securities of the series or Tranche in respect of which
it was made as provided for by the terms of such
Securities.
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously
called for redemption) of a series or Tranche in
respect of which a mandatory sinking fund payment is to
be made and (b) may apply as a credit Securities of
such series or Tranche which have been (1) redeemed
either at the election of the Company pursuant to the
terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to
the terms of such Securities or (2) repurchased by the
Company in the open market, by tender offer or
otherwise, in each case in satisfaction of all or any
part of such mandatory sinking fund payment; provided,
however, that no Securities shall be applied in
satisfaction of a mandatory sinking fund payment if
such Securities shall have been previously so applied.
Securities so applied shall be received and credited
for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through
operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. Redemption of Securities for Sinking
Fund.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, or
any Tranche thereof, the Company shall deliver to the
Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series or
Tranche;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such
aggregate sinking fund payment which is to be
satisfied by the payment of cash;
(e) the portion, if any, of such
aggregate sinking fund payment which is to be
satisfied by delivering and crediting Securities
of such series or Tranche pursuant to Section 502
and stating the basis for such credit and that
such Securities have not previously been so
credited, and the Company shall also deliver to
the Trustee any Securities to be so delivered. If
the Company shall not deliver such Officer's
Certificate, the next succeeding sinking fund
payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory
sinking fund payment. Not less than 40 days
before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and
at the expense of the Company in the manner
provided in Section 404. Such notice having been
duly given, the redemption of such Securities
shall be made upon the terms and in the manner
stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and
Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any, on the
Securities of each series in accordance with the terms
of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series, or any
Tranche thereof, an office or agency where payment of
such Securities shall be made, where the registration
of transfer or exchange of such Securities may be
effected and where notices and demands to or upon the
Company in respect of such Securities and this
Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any
change in the location, of each such office or agency
and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time
the Company shall fail to maintain any such required
office or agency in respect of Securities of any
series, or any Tranche thereof, or shall fail to
furnish the Trustee with the address thereof, payment
of such Securities shall be made, registration of
transfer or exchange thereof may be effected and
notices and demands in respect thereof may be served at
the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent for
all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing
purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise
specified as contemplated by Section 301 with respect
to the Securities of such series or Tranche, no such
designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or
agency for such purposes in each Place of Payment for
such Securities in accordance with the requirements set
forth above. The Company shall give prompt written
notice to the Trustee, and prompt notice to the Holders
in the manner specified in Section 106, of any such
designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company,
in which event the Company shall perform all functions
to be performed at such office or agency.
SECTION 603. 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 the Securities of any
series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities,
segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the
Company (or any other obligor on such Securities) to
make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, or any
Tranche thereof, it shall, on or before each due date
of the principal of and premium, if any, and interest,
if any, on such Securities, deposit with such Paying
Agents sums sufficient (without duplication) to pay the
principal and premium or interest so becoming due, such
sums to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of any failure by it
so to act.
The Company shall cause each Paying Agent for
the Securities of any series, or any Tranche thereof,
other than the Company or 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:
(a) hold all sums held by it for the
payment of the principal of and premium, if any,
or interest, if any, on such Securities in trust
for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any
failure by the Company (or any other obligor upon
such Securities) to make any payment of principal
of or premium, if any, or interest, if any, on
such Securities; and
(c) at any time during the continuance
of any such failure, upon the written request of
the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent and furnish
to the Trustee such information as it possesses
regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by
Company Order 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 trusts as those upon which such sums were held
by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in
accordance with the provisions of Article Seven; 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 money.
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 and premium, if any, or
interest, if any, on any Security and remaining
unclaimed for two years after such principal and
premium, if any, or interest, if any, has become due
and payable shall be paid to the Company on Company
Request, or, if then held by the Company, shall be
discharged from such trust; and, upon such payment or
discharge, the Holder of such Security shall, as an
unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining
unpaid, 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 payment to the Company, may at the expense of the
Company cause to be mailed, on one occasion only,
notice to such Holder 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 mailing,
any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be
done all things necessary to preserve and keep in full
force and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in
the conduct of its business to be maintained and kept
in good condition, repair and working order and shall
cause (or, with respect to property owned in common
with others, make reasonable effort to 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 conducted; provided, however, that nothing in
this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the
operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business.
SECTION 606. Annual Officer's Certificate as to
Compliance.
Not later than October 1 in each year,
commencing October 1, 1996, the Company shall deliver
to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal
executive officer, the principal financial officer or
the principal accounting officer of the Company, as to
such officer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture,
such compliance to be determined without regard to any
period of grace or requirement of notice under this
Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular
instance to comply with any term, provision or
condition set forth in (a) Section 602 or any
additional covenant or restriction specified with
respect to the Securities of any series, or any Tranche
thereof, as contemplated by Section 301 if before the
time for such compliance the Holders of at least a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches with
respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders,
either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition and (b) Section 604, 605 or Article Eleven if
before the time for such compliance the Holders of at
least a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision
or condition; but, in the case of (a) or (b), 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 duties of the
Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged,
if there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company),
in trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior
to the Maturity of such Securities or portions
thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or
other prepayment thereof at the option of the
issuer thereof, the principal of and the interest
on which when due, without any regard to
reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or
held by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) or (b) which
shall be sufficient,
to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision
for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or
portions thereof shall have been selected by the
Security Registrar as provided herein and, in the case
of a redemption, the notice requisite to the validity
of such redemption shall have been given or irrevocable
authority shall have been given by the Company to the
Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further,
that the Company shall have delivered to the Trustee
and such Paying Agent:
(x) if such deposit shall have been made
prior to the Maturity of such Securities, a
Company Order stating that the money and Eligible
Obligations deposited in accordance with this
Section shall be held in trust, as provided in
Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the
obligations so deposited constitute Eligible
Obligations and do not contain provisions
permitting the redemption or other prepayment at
the option of the issuer thereof, and an opinion
of an independent public accountant of nationally
recognized standing, selected by the Company, to
the effect that the requirements set forth in
clause (b) above have been satisfied; and
(z) if such deposit shall have been made
prior to the Maturity of such Securities, an
Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such
Securities or portions thereof will have been
satisfied and discharged as contemplated in this
Section.
Upon the deposit of money or Eligible Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x),
(y) and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the
Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been
paid for all purposes of this Indenture and that the
entire indebtedness of the Company in respect thereof
has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions
set forth in the preceding paragraph shall have been
satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's
Certificate specified in clause (z) shall not have been
delivered, such Securities or portions thereof shall
nevertheless be deemed to have been paid for all
purposes of this Indenture, and the Holders of such
Securities or portions thereof shall nevertheless be no
longer entitled to the benefits of this Indenture or of
any of the covenants of the Company under Article Six
(except the covenants contained in Sections 602, 603
and 604) or any other covenants made in respect of such
Securities or portions thereof as contemplated by
Section 301, but the indebtedness of the Company in
respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the
Holders of such Securities or portions thereof shall
continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and,
upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are
deemed to have been paid for all purposes of this
Indenture.
If payment at Stated Maturity of less than
all of the Securities of any series, or any Tranche
thereof, is to be provided for in the manner and with
the effect provided in this Section, the Security
Registrar shall select such Securities, or portions of
principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than
all the Securities of a series or Tranche.
In the event that Securities which shall be
deemed to have been paid for purposes of this
Indenture, and, if such is the case, in respect of
which the Company's indebtedness shall have been
satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within
the sixty (60) day period commencing with the date of
the deposit of moneys or Eligible Obligations, as
aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities,
to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this
Indenture, as aforesaid, the obligations of the Company
and the Trustee in respect of such Securities under
Sections 304, 305, 306, 403, 404, 406, 503 (as to
notice of redemption), 602, 603, 907, 909, 910 and 915
and this Article Seven shall survive.
The Company shall pay, and shall indemnify
the Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge
imposed on or assessed against such Eligible
Obligations or the principal or interest received in
respect of such Eligible Obligations, including, but
not limited to, any such tax payable by any entity
deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph),
the Trustee or any Paying Agent, as the case may be,
shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it
as aforesaid to the Company or its representative under
any applicable Federal or State bankruptcy, insolvency
or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any
satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be
deemed not to have been effected, and such Security
shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's
indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request
cease to be of further effect (except as hereinafter
expressly provided), and the Trustee, at the expense of
the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously
deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have
been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force
and effect, and the Company shall execute and deliver
such instruments as the Trustee shall reasonably
request to evidence and acknowledge the same.
Notwithstanding the satisfaction and
discharge of this Indenture as aforesaid, the
obligations of the Company and the Trustee under Sec
tions 304, 305, 306, 403, 404, 406, 503 (as to notice
of redemption), 602, 603, 907, 909, 910 and 915 and
this Article Seven shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee
shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 907, any and
all money, securities and other property then held by
the Trustee for the benefit of the Holders of the
Securities other than money and Eligible Obligations
held by the Trustee pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the
money deposited pursuant to Section 701, nor the
principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose
other than, and such Eligible Obligations and money
deposited and the principal and interest payments on
any such Eligible Obligations shall be held in trust
for, the payment of the principal of and premium, if
any, and interest, if any, on the Securities or
portions of principal amount thereof in respect of
which such deposit was made, all subject, however, to
the provisions of Section 603; provided, however, that,
so long as there shall not have occurred and be
continuing an Event of Default, any cash received from
such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose,
shall, to the extent practicable, be invested in
Eligible Obligations of the type described in clause
(b) in the first paragraph of Section 701 maturing at
such times and in such amounts as shall be sufficient
to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such
Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge
under this Indenture except the lien provided by
Section 907; and provided, further, that, so long as
there shall not have occurred and be continuing an
Event of Default, any moneys held in accordance with
this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of
and premium, if any, and interest, if any, then due on
such Securities shall be paid over to the Company free
and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall
have occurred and be continuing, moneys to be paid over
to the Company pursuant to this Section shall be held
until such Event of Default shall have been waived or
cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one of
the following events:
(a) failure to pay interest, if any, on
any Security of such series within sixty (60) days
after the same becomes due and payable (whether or
not payment is prohibited by the provisions of
Article Fifteen hereof); provided, however, that a
valid extension of the interest payment period by
the Company as contemplated in Section 312 of this
Indenture shall not constitute a failure to pay
interest for this purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series
within three (3) Business Days after its Maturity
(whether or not payment is prohibited by the
provisions of Article Fifteen hereof); or
(c) failure to perform, or breach of,
any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or
more series of Securities other than such series)
for a period of 60 days after there has been
given, by registered or certified mail, to the
Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in
principal amount of the Outstanding Securities of
such series, a written notice specifying such
default or breach and requiring it to be remedied
and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the
Trustee and the Holders of a principal amount of
Securities of such series not less than the
principal amount of Securities the Holders of
which gave such notice, as the case may be, shall
agree in writing to an extension of such period
prior to its expiration; provided, however, that
the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such
series, as the case may be, shall be deemed to
have agreed to an extension of such period if
corrective action is initiated by the Company
within such period and is being diligently
pursued; or
(d) the entry by a court having
jurisdiction in the premises of (1) a decree or
order for relief in respect of the Company in an
involuntary case or proceeding under any appli
cable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a
decree or order adjudging the Company a bankrupt
or insolvent, or approving as properly filed a
petition by one or more Persons other than the
Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the
Company under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar
official for the Company or for any substantial
part of its property, or ordering the winding up
or liquidation of its affairs, and any such decree
or order for relief or any such other decree or
order shall have remained unstayed and in effect
for a period of 90 consecutive days; or
(e) the commencement by the Company of
a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insol
vency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect
of the Company in a case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent
seeking reorganization or relief under any
applicable Federal or State law, or the consent by
it to the filing of such petition or to the
appointment of or taking possession by a
custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the
Company or of any substantial part of its
property, or the making by it of an assignment for
the benefit of creditors, or the admission by it
in writing of its inability to pay its debts
generally as they become due, or the authorization
of such action by the Board of Directors; or
(f) any other Event of Default
specified with respect to Securities of such
series.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default shall have occurred
and be continuing with respect to Securities of any
series at the time Outstanding, then in every such case
the Trustee or the Holders of not less than 33% in
principal amount of the Outstanding Securities of such
series may declare the principal amount (or, if any of
the Securities of such series are Discount Securities,
such portion of the principal amount of such Securities
as may be specified in the terms thereof as
contemplated by Section 301) of all of the Securities
of such series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if
given by Holders), and upon receipt by the Company of
notice of such declaration such principal amount (or
specified amount) shall become immediately due and pay
able (provided that the payment of principal of such
Securities shall remain subordinated to the extent
provided in Article Fifteen hereof); provided, however,
that if an Event of Default shall have occurred and be
continuing with respect to more than one series of
Securities, the Trustee or the Holders of not less than
33% in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class
(and not the Holders of the Securities of any one of
such series), may make such declaration of
acceleration.
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree
for payment of the money due shall have been obtained
by the Trustee as hereinafter in this Article provided,
the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed
to have been rescinded and annulled, if
(a) the Company shall have paid or
deposited with the Trustee a sum sufficient to pay
(1) all overdue interest on all
Securities of such series;
(2) the principal of and premium,
if any, on any Securities of such series
which have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon
overdue interest at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default
with respect to Securities of such series, other
than the non-payment of the principal of
Securities of such series which shall have become
due solely by such declaration of acceleration,
shall have been cured or waived as provided in
Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause
(a) or (b) of Section 801 shall have occurred and be
continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of
the Securities of the series with respect to which such
Event of Default shall have occurred, the whole amount
then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, to the
extent permitted by law, interest on premium, if any,
and on any overdue principal and interest, at the rate
or rates prescribed therefor in such Securities, and,
in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee
under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same
against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the
Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or
of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the
Securities shall then be due and payable as therein
expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the
whole amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or
documents as may be necessary or advisable in
order to have the claims of the Trustee (including
any claim for amounts due to the Trustee under
Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys
or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay
to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any
of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders in respect of
which such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the
benefit of which such money shall have been collected
and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully
paid:
First: To the payment of all amounts due the
Trustee under Section 907;
Second: To the payment of the amounts then
due and unpaid upon the Securities for principal
of and premium, if any, and interest, if any, in
respect of which or for the benefit of which such
money has been collected, ratably, without
preference or priority of any kind, according to
the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any,
respectively; and
Third: To the Company.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute
any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously
given written notice to the Trustee of a
continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of not less than a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and
be continuing, considered as one class, shall have
made written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have
offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the
Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and
be continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders or to obtain or to
seek to obtain priority or preference over any other of
such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 312) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp
tion, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights
shall not be impaired without the consent of such
Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under
this Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy here
under, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right
or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred
and be continuing in respect of a series of Securities,
the Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the
right to 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 the Trustee, with respect to the Securities of such
series; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to
more than one series of Securities, the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all such series, considered
as one class, shall have the right to make such
direction, and not the Holders of the Securities of any
one of such series; and provided, further, that
(a) such direction shall not be in
conflict with any rule of law or with this
Indenture, and could not involve the Trustee in
personal liability in circumstances where
indemnity would not, in the Trustee's sole
discretion, be adequate, and
(b) the Trustee may take any other
action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the
Securities of such series waive any past default
hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of
or premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or
provision hereof which under Section 1202 cannot
be modified or amended without the consent of the
Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall
cease to exist, and any and all Events of Default
arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted
by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due
regard to the merits and good faith of the claims or
defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by
the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than
10% in aggregate principal amount of the Outstanding
Securities of all series in respect of which such suit
may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after
the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the
performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an
Event of Default with respect to Securities of any
series,
(1) the Trustee undertakes to
perform, with respect to Securities of such
series, such duties and only such duties as
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, with respect to
Securities of such series, conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed
therein, upon certificates or opinions
furnished to the Trustee and conforming to
the requirements of this Indenture; but in
the case of any such certificates or opinions
which by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect
to Securities of any series shall have occurred
and be continuing, the Trustee shall exercise,
with respect to Securities of such series, such of
the rights and powers vested in it by 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.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability
for its own negligent action, its own negligent
failure to act, or its own willful misconduct,
except that
(1) this clause (c) shall not be
construed to limit the effect of clause (a)
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
shall be proved that the Trustee was
negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be
liable with respect to any action taken or
omitted to be taken by it in good faith in
accordance with the direction of the Holders
of a majority in principal amount of the
Outstanding Securities of any one or more
series, as provided herein, relating to the
time, method and place of conducting any
proceeding for any remedy available to the
Trustee, or exercising any trust or power
conferred upon the Trustee, under this
Indenture with respect to the Securities of
such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk
its own funds or otherwise incur any
financial liability in the performance of any
of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall
have reasonable grounds for believing that
repayment of such funds or adequate indemnity
against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture
relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series
to the Holders of Securities of such series in the
manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been
cured or waived; provided, however, that in the case of
any default of the character specified in clause (c) of
Section 801, no such notice to Holders shall be given
until at least 75 days after the occurrence thereof.
For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of
time, or both, would become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and
to the applicable provisions of the Trust Indenture
Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document believed by it to be genuine and to have
been signed or presented by the proper party or
parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, or as
otherwise expressly provided herein, and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion
of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in
it by this Indenture at the request or direction
of any Holder pursuant to this Indenture, unless
such Holder shall have offered to the Trustee
reasonable security or indemnity against the
costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make
any investigation into the facts or matters stated
in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may
make such further inquiry or investigation into
such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further
inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to
examine, during normal business hours, the books,
records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents
or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on
the part of any agent or attorney appointed with
due care by it hereunder; and
(h) except as otherwise provided in Section
801, the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge
of the Event of Default or (2) written notice of
such Event of Default shall have been given to the
Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness.
The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall
be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any
other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner
or pledgee of Securities and, subject to Sections 908
and 913, may otherwise deal with the Company with the
same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any money
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole
benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered
by it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and
advances reasonably incurred or made by the
Trustee in accordance with any provision of this
Indenture (including the reasonable compensation
and the expenses and disbursements of its agents
and counsel), except to the extent that any such
expense, disbursement or advance may be
attributable to its negligence, willful misconduct
or bad faith; and
(c) indemnify the Trustee and hold it
harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of
or in connection with the acceptance or
administration of the trust or trusts hereunder or
the performance of its duties hereunder, including
the costs and expenses of defending itself against
any claim or liability in connection with the
exercise or performance of any of its powers or
duties hereunder, except to the extent any such
loss, liability or expense may be attributable to
its negligence, willful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust
under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section
shall include any predecessor Trustee; provided,
however, that the negligence, willful misconduct or bad
faith of any Trustee hereunder shall not affect the
rights of any other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the
manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and
this Indenture. For purposes of Section 310(b)(1) of
the Trust Indenture Act and to the extent permitted
thereby, the Trustee, in its capacity as trustee in
respect of the Securities of any series, shall not be
deemed to have a conflicting interest arising from its
capacity as trustee in respect of the Securities of any
other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee
hereunder which shall be
(a) a corporation organized and doing
business under the laws of the United States, any
State or Territory thereof or the District of
Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by
the Commission by rule, regulation or order upon
application, a corporation or other Person
organized and doing business under the laws of a
foreign government, authorized under such laws to
exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 or the
Dollar equivalent of the applicable foreign
currency and subject to supervision or examination
by authority of such foreign government or a
political subdivision thereof substantially
equivalent to supervision or examination
applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corpora
tion publishes reports of condition at least annually,
pursuant to law or to the requirements of such
supervising or examining authority, then for the
purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published. If at any
time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it
shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the
Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective
until the acceptance of appointment by the
successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time
with respect to the Securities of one or more
series by giving written notice thereof to the
Company. If the instrument of acceptance by a
successor Trustee required by Section 911 shall
not have been delivered to the Trustee within 30
days after the giving of such notice of resigna
tion, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any
time with respect to the Securities of any series
by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such
series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to
comply with Section 908 after written request
therefor by the Company or by any Holder who
has been a bona fide Holder for at least six
months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to
resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become
incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed
or any public officer shall take charge or
control of the Trustee or of its property or
affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board
Resolution may remove the Trustee with respect to
all Securities or (B) subject to Section 814, any
Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all
others similarly situated, petition any court of
competent jurisdiction for the removal of the
Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be
removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for
any cause (other than as contemplated in clause
(B) in clause (d) of this Section), with respect
to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with
respect to the Securities of that or those series
(it being understood that any such successor
Trustee may be appointed with respect to the
Securities of one or more or all of such series
and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If,
within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities
of any series shall be appointed by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the succes
sor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with
the applicable requirements of Section 911, become
the successor Trustee with respect to the
Securities of such series and to that extent
supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to
the Securities of any series shall have been so
appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least
six months may, on behalf of itself and all others
similarly situated, petition any court of
competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities
of such series.
(f) So long as no event which is, or
after notice or lapse of time, or both, would
become, an Event of Default shall have occurred
and be continuing, and except with respect to a
Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding
Securities pursuant to subsection (e) of this
Section, if the Company shall have delivered to
the Trustee (1) a Board Resolution appointing a
successor Trustee, effective as of a date
specified therein, and (2) an instrument of
acceptance of such appointment, effective as of
such date, by such successor Trustee in accordance
with Section 911, the Trustee shall be deemed to
have resigned as contemplated in subsection (b) of
this Section, the successor Trustee shall be
deemed to have been appointed by the Company
pursuant to subsection (e) of this Section and
such appointment shall be deemed to have been
accepted as contemplated in Section 911, all as of
such date, and all other provisions of this
Section and Section 911 shall be applicable to
such resignation, appointment and acceptance
except to the extent inconsistent with this clause
(f).
(g) The Company shall give notice of
each resignation and each removal of the Trustee
with respect to the Securities of any series and
each appointment of a successor Trustee with
respect to the Securities of any series by mailing
written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of
such series as their names and addresses appear in
the Security Register. Each notice shall include
the name of the successor Trustee with respect to
the Securities of such series and the address of
its corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment
hereunder of a successor Trustee with respect to
the Securities of all series, every such successor
Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the
retiring Trustee shall become effective and such
successor Trustee, without any further act, shall
become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the re
quest of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of all
sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to
such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) 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 retiring Trustee and each
successor Trustee with respect to the Securities
of such series shall execute and deliver an
indenture supplemental hereto wherein each
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, each 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 sup
plemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts here
under separate and apart from any trust or trusts
hereunder administered by any other such Trustee;
and upon the execution and delivery of such
supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to
the extent provided therein and each such
successor Trustee, without any further act, shall
become vested with 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;
but, on request of the Company or any successor
Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer
and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder
with respect to the Securities of that or those
series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor
Trustee, the Company shall execute any instruments
which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts
referred to in clause (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept
its appointment unless at the time of such
acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding
to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such
authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against
Company.
If the Trustee shall be or become a creditor
of the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions
of the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means
any transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper"
means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or
incurred by the Company or such obligor for the
purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods,
wares or merchandise and which is secured by
documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of
the goods, wares or merchandise previously
constituting the security, provided the security
is received by the Trustee simultaneously with the
creation of the creditor relationship with the
Company or such obligor arising from the making,
drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least thirty-three
percentum (33%) in principal amount of the Securities
then Outstanding, the Company shall for such purpose
join with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Trustee
either to act as co-trustee, jointly with the Trustee,
or to act as separate trustee, in either case with such
powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons, in
the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the
other provisions of this Section. If the Company does
not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of
Default shall have occurred and be continuing, the
Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property,
title, right or power, any and all such instruments
shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall,
to the extent permitted by law, but to such extent
only, be appointed subject to the following conditions:
(a) the Securities shall be
authenticated and delivered, and all rights,
powers, duties and obligations hereunder in
respect of the custody of securities, cash and
other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder,
shall be exercised solely, by the Trustee;
(b) the rights, powers, duties and
obligations hereby conferred or imposed upon the
Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by
the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate
trustee, except to the extent that under any law
of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent
or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or
separate trustee;
(c) the Trustee at any time, by an
instrument in writing executed by it, with the
concurrence of the Company, may accept the
resignation of or remove any co-trustee or
separate trustee appointed under this Section,
and, if an Event of Default shall have occurred
and be continuing, the Trustee shall have power to
accept the resignation of, or remove, any such co-
trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join
with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper
to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating
Agent or Agents with respect to the Securities of one
or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to
authenticate Securities of such series or Tranche
issued upon original issuance, exchange, registration
of transfer or partial redemption thereof or pursuant
to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the
authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentica
tion executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be
a corporation organized and doing business under the
laws of the United States, any State or Territory
thereof or the District of Columbia or the Commonwealth
of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and sur
plus of not less than $50,000,000 and subject to super
vision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of
condition so published. If at any time an
Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper
or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any
time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Sec
tion, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the
Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each
Authenticating Agent from time to time reasonable
compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such
payments, in accordance with, and subject to the
provisions of Section 907.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the
Securities of one or more series, or any Tranche
thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
The First National Bank of Chicago
As Trustee
By:___________________________
As Authenticating Agent
By:___________________________
Authorized Signatory
If all of the Securities of a series may not
be originally issued at one time, and if the Trustee
does not have an office capable of authenticating
Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the
Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel),
shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable
to the Trustee, an Authenticating Agent having an
office in a Place of Payment designated by the Company
with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 1 and
September 1 in each year, commencing March 1, 1996, and
at such other times as the Trustee may request in
writing, the Company shall furnish or cause to be
furnished to the Trustee information as to the names
and addresses of the Holders, and the Trustee shall
preserve such information and similar information
received by it in any other capacity and afford to the
Holders access to information so preserved by it, all
to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however,
that no such list need be furnished so long as the
Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than July 1 in each year,
commencing July 1, 1996, the Trustee shall transmit to
the Holders and the Commission a report, dated as of
the next preceding May 1, with respect to any events
and other matters described in Section 313(a) of the
Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the
Company shall file with the Trustee (within thirty (30)
days after filing with the Commission in the case of
reports which pursuant to the Trust Indenture Act must
be filed with the Commission and furnished to the
Trustee) and transmit to the Holders, such other
information, reports and other documents, if any, at
such times and in such manner, as shall be required by
the Trust Indenture Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or
merge into any other corporation, or convey or
otherwise transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation formed by such
consolidation or into which the Company is merged
or the Person which acquires by conveyance or
transfer, or which leases, the properties and
assets of the Company substantially as an entirety
shall be a Person organized and existing under the
laws of the United States, any State thereof or
the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form sat
isfactory to the Trustee, the due and punctual
payment of the principal of and premium, if any,
and interest, if any, on all Outstanding
Securities and the performance of every covenant
of this Indenture on the part of the Company to be
performed or observed;
(b) immediately after giving effect to
such transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of 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
occurred and be continuing; and
(c) the Company shall have delivered to
the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other
transfer or lease and such supplemental indenture
comply with this Article and that all conditions
precedent herein provided for relating to such
transactions have been complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the
properties and assets of the Company substantially as
an entirety in accordance with Section 1101, the
successor corporation formed by such consolidation or
into which the Company is merged or the Person 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 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 relieved of all obligations
and covenants under this Indenture and the Securities
Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent
of Holders.
Without the consent of any Holders, the
Company and the Trustee, at any time and from time to
time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of
another Person to the Company and the assumption
by any such successor of the covenants of the
Company herein and in the Securities, all as
provided in Article Eleven; or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all
Holders or for the benefit of the Holders of, or
to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof,
or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of
Default with respect to all or any series of
Securities Outstanding hereunder; or
(d) to change or eliminate any
provision of this Indenture or to add any new
provision to this Indenture; provided, however,
that if such change, elimination or addition shall
adversely affect the interests of the Holders of
Securities of any series or Tranche Outstanding on
the date of such indenture supplemental hereto in
any material respect, such change, elimination or
addition shall become effective (1) with respect
to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or (2) when no
Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for
all but not part of the Securities; or
(f) to establish the form or terms of
Securities of any series or Tranche as
contemplated by Sections 201 and 301; or
(g) to provide for the authentication
and delivery of bearer securities and coupons
appertaining thereto representing interest, if
any, thereon and for the procedures for the
registration, exchange and replacement thereof and
for the giving of notice to, and the solicitation
of the vote or consent of, the holders thereof,
and for any and all other matters incidental
thereto; or
(h) to evidence and provide for the
acceptance of appointment hereunder by a separate
or 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 necessary to provide for or facilitate
the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of
clause (b) of Section 911; or
(i) to provide for the procedures
required to permit the Company to utilize, at its
option, a non-certificated system of registration
for all, or any series or Tranche of, the Securi
ties; or
(j) to change any place or places where
(1) the principal of and premium, if any, and
interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be
payable, (2) all or any series of Securities, or
any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of
Securities, or any Tranche thereof, may be
surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all
or any series of Securities, or any Tranche
thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct
or supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests
of the Holders of Securities of any series or
Tranche in any material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at
the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended
and
(x) if any such amendment shall require one
or more changes to any provisions hereof or the
inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such
changes or incorporate such provisions by
reference or otherwise, this Indenture shall be
deemed to have been amended so as to conform to
such amendment to the Trust Indenture Act, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to effect or evidence such
changes or additional provisions; or
(y) if any such amendment shall permit one
or more changes to, or the elimination of, any
provisions hereof which, at the date of the
execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture
Act to be contained herein, this Indenture shall
be deemed to have been amended to effect such
changes or elimination, and the Company and the
Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less
than a majority in aggregate principal amount of the
Securities of all series then Outstanding under this
Indenture, considered as one class, by Act of said
Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provi
sions to, or changing in any manner or eliminating any
of the provisions of, this Indenture; provided,
however, that if there shall be Securities of more than
one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less
than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series so directly
affected, considered as one class, shall be required;
and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche
and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Securities
of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected,
considered as one class, shall be required; and
provided, further, that no such supplemental indenture
shall:
(a) change the Stated Maturity of the
principal of, or any installment of principal of
or interest on (except as provided in Section 312
hereof), any Security, or reduce the principal
amount thereof or the rate of interest thereon (or
the amount of any installment of interest thereon)
or change the method of calculating such rate or
reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of
a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802, or change the
coin or currency (or other property), in which any
Security or any premium or the interest thereon is
payable, or impair the right to institute suit for
the enforcement of any such payment on or after
the Stated Maturity of any Security (or, in the
case of redemption, on or after the Redemption
Date), without, in any such case, the consent of
the Holder of such Security, or
(b) reduce the percentage in principal
amount of the Outstanding Securities of any series
or any Tranche thereof, the consent of the Holders
of which is required for any such supplemental in
denture, or the consent of the Holders of which is
required for any waiver of compliance with any
provision of this Indenture or of any default
hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the
Holders of each Outstanding Security of such
series or Tranche, or
(c) modify any of the provisions of
this Section, Section 607 or Section 813 with
respect to the Securities of any series, or any
Tranche thereof, or except to increase the
percentages in principal amount referred to in
this Section or such other Sections or to provide
that other provisions of this Indenture cannot be
modified or waived without the consent of the
Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder
with respect to changes in the references to "the
Trustee" and concomitant changes in this Section,
or the deletion of this proviso, in accordance
with the requirements of clause (b) of Section 911
and clause (h) of Section 1201.
A supplemental indenture which changes or
eliminates any covenant or other provision of this
Indenture which has expressly been included solely for
the benefit of one or more particular series of Securi
ties, or of one or more Tranches thereof, or which
modifies the rights of the Holders of Securities of
such series or Tranches 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 or Tranche.
It shall not be necessary for any Act of
Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the
substance thereof. A waiver by a Holder of such
Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional
trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 901) 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, immunities or liabilities
under this Indenture or otherwise.
SECTION 1204. 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 this Indenture for all
purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall
be bound thereby. Any supplemental indenture permitted
by this Article may restate this Indenture in its
entirety, and, upon the execution and delivery thereof,
any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed
pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in
effect.
SECTION 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche
thereof, 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, or any Tranche thereof, so modified as to
conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities
of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a
Board Resolution as contemplated by Section 301, and
not in an indenture supplemental hereto, additions to,
changes in or the elimination of any of such terms may
be effected by means of a supplemental Board Resolution
or Officer's Certificate, as the case may be, delivered
to, and accepted by, the Trustee; provided, however,
that such supplemental Board Resolution or Officer's
Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth
in this Indenture which would be required to be
satisfied if such additions, changes or elimination
were contained in a supplemental indenture shall have
been appropriately satisfied. Upon the acceptance
thereof by the Trustee, any such supplemental Board
Resolution or Officer's Certificate shall be deemed to
be a "supplemental indenture" for purposes of Section
1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches
thereof, may be called at any time and from time to
time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice,
consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a
meeting of Holders of Securities of one or more,
or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section
1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as
the Trustee shall determine, or, with the approval
of the Company, at any other place. Notice of
every such meeting, setting forth the time and the
place of such meeting and in general terms the
action proposed to be taken at such meeting, shall
be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) If the Trustee shall have been
requested to call a meeting of the Holders of
Securities of one or more, or all, series, or any
Tranche or Tranches thereof, by the Company or by
the Holders of 33% in aggregate principal amount
of all of such series and Tranches, considered as
one class, for any purpose specified in Section
1301, by written request setting forth in
reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days
after receipt of such request or shall not
thereafter proceed to cause the meeting to be held
as provided herein, then the Company or the
Holders of Securities of such series and Tranches
in the amount above specified, as the case may be,
may determine the time and the place in the
Borough of Manhattan, The City of New York, or in
such other place as shall be determined or
approved by the Company, for such meeting and may
call such meeting for such purposes by giving
notice thereof as provided in clause (a) of this
Section.
(c) Any meeting of Holders of
Securities of one or more, or all, series, or any
Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding
Securities of such series or Tranches are present
in person or by proxy and if representatives of
the Company and the Trustee are present, or if
notice is waived in writing before or after the
meeting by the Holders of all Outstanding
Securities of such series, or by such of them as
are not present at the meeting in person or by
proxy, and by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of
Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of
such series or Tranches, or (b) a Person appointed by
an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only
Persons who shall be entitled to attend any meeting of
Holders of Securities of any series or Tranche shall be
the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its
counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding
Securities of the series and Tranches with respect to
which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a
quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any
action is to be taken at such meeting which this
Indenture expressly provides may be taken by the
Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Secu
rities of such series and Tranches, considered as one
class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any
such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and
Tranches, be dissolved. In any other case the meeting
may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Except as provided by
clause (e) of Section 1305, notice of the reconvening
of any meeting adjourned for more than 30 days shall be
given as provided in clause (a) of Section 1302 not
less than ten days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have
been called, considered as one class; provided,
however, that, except as so limited, any resolution
with respect to any action which this Indenture express
ly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as
one class.
Any resolution passed or decision taken at
any meeting of Holders of Securities duly held in
accordance with this Section shall be binding on all
the Holders of Securities of the series and Tranches
with respect to which such meeting shall have been
held, whether or not present or represented at the
meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders
of Securities may be in person or by proxy; and,
to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any
future Holder of the Securities with respect to
which it was given unless and until specifically
revoked by the Holder or future Holder of such
Securities before being voted.
(b) Notwithstanding any other
provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities
in regard to proof of the holding of such
Securities and of the appointment of proxies and
in regard to the appointment and duties of
inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other
matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the
holding of Securities shall be proved in the
manner specified in Section 104 and the
appointment of any proxy shall be proved in the
manner specified in Section 104. Such regulations
may provide that written instruments appointing
proxies, regular on their face, may be presumed
valid and genuine without the proof specified in
Section 104 or other proof.
(c) The Trustee shall, by an instrument
in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called
by the Company or by Holders as provided in clause
(b) of Section 1302, in which case the Company or
the Holders of Securities of the series and
Tranches calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of
all series and Tranches represented at the meet
ing, considered as one class.
(d) At any meeting each Holder or proxy
shall be entitled to one vote for each $1 princi
pal amount of Securities held or represented by
him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to
Section 1302 at which a quorum is present may be
adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of
the Outstanding Securities of all series and
Tranches represented at the meeting, considered as
one class; and the meeting may be held as so ad
journed without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal
amounts and serial numbers of the Outstanding Secu
rities, of the series and Tranches with respect to
which the meeting shall have been called, held or
represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any
resolution and who shall make and file with the
secretary of the meeting their verified written reports
of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be pre
pared by the secretary of the meeting and there shall
be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge
of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section
1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the
Company, and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters
therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request,
demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by
Holders by written instruments as provided in Section
104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Di
rectors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of
the principal of or premium, if any, or interest, if
any, on any Securities, or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under this Indenture,
against any incorporator, stockholder, officer or
director, as such, past, present or future of the
Company or of any predecessor or successor corporation
(either directly or through the Company or a
predecessor or successor corporation), whether by
virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities
are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred
by, any incorporator, stockholder, officer or director,
past, present or future, of the Company or of any
predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness
hereby authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any,
on each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner set forth
in this Article, in right of payment to the prior
payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series,
by its acceptance thereof, authorizes and directs the
Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the
subordination as provided in this Article, and appoints
the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or
bankruptcy proceedings or any receivership,
liquidation, reorganization or other similar
proceedings in respect of the Company or a substantial
part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the
Company, whether or not involving insolvency or
bankruptcy, or (b) subject to the provisions of Section
1503, that (1) a default shall have occurred with
respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (2) there shall have occurred a
default (other than a default in the payment of
principal or interest or other monetary amounts due and
payable) in respect of any Senior Indebtedness, as
defined therein or in the instrument under which the
same is outstanding, permitting the holder or holders
thereof to accelerate the maturity thereof (with notice
or lapse of time, or both), such default shall have
continued beyond the period of grace, if any, in
respect thereof, and, in the cases of subclauses (1)
and (2) of this clause (b), such default shall not have
been cured or waived or shall not have ceased to exist,
or (c) that the principal of and accrued interest on
the Securities of any series shall have been declared
due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled
as provided in Section 802, then:
(A) the holders of all Senior
Indebtedness shall first be entitled to receive
payment of the full amount due thereon, or
provision shall be made for such payment in
money or money's worth, before the Holders of
any of the Securities are entitled to receive a
payment on account of the principal of,
premium, if any, or interest on the
indebtedness evidenced by the Securities,
including, without limitation, any payments
made pursuant to Articles Four and Five;
(B) any payment by, or distribution of
assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the Trustee
would be entitled except for the provisions of
this Article, shall be paid or delivered by the
person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to
the holders of such Senior Indebtedness or
their representative or representatives or to
the trustee or trustees under any indenture
under which any instruments evidencing any of
such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts
remaining unpaid on account of such Senior
Indebtedness held or represented by each, to
the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders
of the indebtedness evidenced by the Securities
or to the Trustee under this Indenture; and
(C) in the event that, notwithstanding
the foregoing, any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, in respect of principal of or
interest on the Securities or in connection
with any repurchase by the Company of the
Securities, shall be received by the Trustee or
any Holder before all Senior Indebtedness is
paid in full, or provision is made for such
payment in money or money's worth, such payment
or distribution in respect of principal of or
interest on the Securities or in connection
with any repurchase by the Company of the
Securities shall be paid over to the holders of
such Senior Indebtedness or their
representative or representatives or to the
trustee or trustees under any indenture under
which any instruments evidencing any such
Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to
any concurrent payment or distribution (or
provision therefor) to the holders of such
Senior Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Eligible Obligations pursuant to Section 701 (provided
all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation,
those arising under this Article Fifteen; provided that
no event described in clauses (d) and (e) of Section
801 with respect to the Company has occurred during
such 123-day period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized
or readjusted, or securities of the Company or any
other corporation provided for by a plan or
reorganization or readjustment which are subordinate in
right of payment to all Senior Indebtedness which may
at the time be outstanding to the same extent as, or to
a greater extent than, the Securities are so
subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or
transfer of its property as an entirety, or
substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article
Eleven hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the
purposes of this Section 1502 if such other corporation
shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions
stated in Article Eleven hereof. Nothing in Section
1501 or in this Section 1502 shall apply to claims of,
or payments to, the Trustee under or pursuant to
Section 907.
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on
or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by
the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any
deferral, renewal, extension or refunding thereof) or
any other obligation as to which the provisions of this
Section shall have been waived by the Company in the
instrument or instruments by which the Company
incurred, assumed, guaranteed or otherwise created such
indebtedness or obligation, shall not be deemed a
default under clause (b) of Section 1502 if (1) the
Company shall be disputing its obligation to make such
payment or perform such obligation and (2) either (A)
no final judgment relating to such dispute shall have
been issued against the Company which is in full force
and effect and is not subject to further review,
including a judgment that has become final by reason of
the expiration of the time within which a party may
seek further appeal or review, or (B) in the event that
a judgment that is subject to further review or appeal
has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review
and a stay or execution shall have been obtained
pending such appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Upon the payment
in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive any further
payments or distributions of cash, property or
securities of the Company applicable to the holders of
the Senior Indebtedness until all amounts owing on the
Securities shall be paid in full; and such payments or
distributions of cash, property or securities received
by the Holders of the Securities, by reason of such
subrogation, which otherwise would be paid or
distributed to the holders of such Senior Indebtedness
shall, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the Holders, be
deemed to be a payment by the Company to or on account
of Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the
principal of and interest on the Securities as and when
the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the
Company other than the holders of Senior Indebtedness,
nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior
Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such
remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article,
the Trustee and the Holders shall be entitled to rely
upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending
for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon, and all
other facts pertinent thereto or to this Article.
SECTION 1506. Priority of Senior Indebtedness Upon Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or
otherwise, all matured principal of Senior Indebtedness
and interest and premium, if any, thereon shall first
be paid in full before any payment of principal or
premium or interest, if any, is made upon the
Securities or before any Securities can be acquired by
the Company or any sinking fund payment is made with
respect to the Securities (except that required sinking
fund payments may be reduced by Securities acquired
before such maturity of such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent
as any other holder of Senior Indebtedness. Nothing in
this Article shall deprive the Trustee of any of its
rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate Subordination.
Notwithstanding the provisions of this Article or
any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the
Trustee shall have received written notice thereof from
the Company, from a Holder or from a holder of any
Senior Indebtedness or from any representative or
representatives of such holder and, prior to the
receipt of any such written notice, the Trustee shall
be entitled, subject to Section 901, in all respects to
assume that no such facts exist; provided, however,
that, if prior to the fifth Business Day preceding the
date upon which by the terms hereof any such moneys may
become payable for any purpose, or in the event of the
execution of an instrument pursuant to Section 702
acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the
notice provided for in this Section, then, anything
herein contained to the contrary notwithstanding, the
Trustee may, in its discretion, receive such moneys
and/or apply the same to the purpose for which they
were received, and shall not be affected by any notice
to the contrary, which may be received by it on or
after such date; provided, however, that no such
application shall affect the obligations under this
Article of the persons receiving such moneys from the
Trustee.
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the
payment of the principal of and premium, if any, and
interest, if any, on the Securities, at any time or
from time to time and in their absolute discretion,
agree with the Company to change the manner, place or
terms of payment, change or extend the time of payment
of, or renew or alter, any Senior Indebtedness, or
amend or supplement any instrument pursuant to which
any Senior Indebtedness is issued, or exercise or
refrain from exercising any other of their rights under
the Senior Indebtedness including, without limitation,
the waiver of default thereunder, all without notice to
or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as
are specifically set forth in this Indenture, and no
implied covenants or obligations with respect to the
holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness, and shall not be liable to any
such holders if it shall mistakenly pay over or deliver
to the Holders or the Company or any other Person,
money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this
Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the
context shall otherwise require) be construed as
extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided,
however, that Sections 1507, 1508 and 1510 shall not
apply to the Company if it acts as Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness Not
Impaired.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any
time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
SECTION 1513. Effect of Subordination Provisions; Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately succeeding
sentence, all the provisions of this Indenture shall be
subject to the provisions of this Article, so far as the same
may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be of
no further effect, and the Securities shall no longer be
subordinated in right of payment to the prior payment of
Senior Indebtedness, if the Company shall have delivered to
the Trustee a notice to such effect. Any such notice
delivered by the Company shall not be deemed to be a
supplemental indenture for purposes of Article Twelve hereof.
_________________________
This instrument may be executed in any number of counter
parts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day
and year first above written.
IES UTILITIES INC.
By:__________________________
ATTEST:
__________________________
THE FIRST NATIONAL BANK
OF CHICAGO, TRUSTEE
By:___________________________
ATTEST:
__________________________
STATE OF IOWA )
) ss.:
COUNTY OF LINN )
On the ____ day of _________, 1995, before me personally
came _______________, to me known, who, being by me duly
sworn, did depose and say that he is the _______________ of
IES Utilities Inc., the corporation described in and which
executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed
his name thereto by like authority, acknowledging the
instrument to be the free act and deed of said corporation.
________________________________
Notary Public
[Notarial Seal]
STATE OF ______ )
) ss.:
COUNTY OF ______ )
On the ____ day of _________, 1995, before me personally
came _______________, to me known, who, being by me duly
sworn, did depose and say that he is a _______________ of
_________________, the national banking association described
in and which executed the foregoing instrument; that he knows
the seal of said national banking association; that the seal
affixed to said instrument is the seal of said national
banking association; that it was so affixed by authority of
the Board of Directors of said national banking association,
and that he signed his name thereto by like authority,
acknowledging the instrument to be the free act and deed of
said national banking association.
________________________________
Notary Public
[Notarial Seal]
TABLE OF CONTENTS
RECITAL OF THE COMPANY 1
ARTICLE ONE Definitions and Other Provisions of General
Application 1
SECTION 101. Definitions 1
Act 2
Affiliate 2
Authenticating Agent 2
Authorized Officer 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company 2
Company Request or Company Order 2
Corporate Trust Office 2
Defaulted Interest 3
Discount Security 3
Dollar or $ 3
Eligible Obligations 3
Event of Default 3
Governmental Authority 3
Government Obligations 3
Holder 3
Indenture 3
Interest Payment Date 4
Maturity 4
Officer's Certificate 4
Opinion of Counsel 4
Outstanding 4
Paying Agent 5
Periodic Offering 5
Person 5
Place of Payment 5
Predecessor Security 5
Redemption Date 5
Redemption Price 6
Regular Record Date 6
Required Currency 6
Responsible Officer 6
Securities 6
Security Register and Security Registrar 6
Senior Indebtedness 6
Special Record Date 6
Stated Interest Rate 6
Stated Maturity 6
Tranche 7
Trust Indenture Act 7
Trustee 7
United States 7
SECTION 102. Compliance Certificates and
Opinions 7
SECTION 103. Form of Documents Delivered
to Trustee 7
SECTION 104. Acts of Holders 8
SECTION 105. Notices, Etc. to Trustee and
Company 10
SECTION 106. Notice to Holders of Securities;
Waiver 10
SECTION 107. Conflict with Trust Indenture Act 11
SECTION 108. Effect of Headings and
Table of Contents 11
SECTION 109. Successors and Assigns 11
SECTION 110. Separability Clause 11
SECTION 111. Benefits of Indenture 11
SECTION 112. Governing Law 12
SECTION 113. Legal Holidays 12
ARTICLE TWO Security Forms 12
SECTION 201. Forms Generally 12
SECTION 202. Form of Trustee's
Certificate of Authentication 13
ARTICLE THREE The Securities 13
SECTION 301. Amount Unlimited; Issuable
in Series 13
SECTION 302. Denominations 16
SECTION 303. Execution, Authentication,
Delivery and Dating 16
SECTION 304. Temporary Securities 19
SECTION 305. Registration, Registration
of Transfer and Exchange 19
SECTION 306. Mutilated, Destroyed, Lost
and Stolen Securities 20
SECTION 307. Payment of Interest; Interest
Rights Preserved 21
SECTION 308. Persons Deemed Owners 22
SECTION 309. Cancellation by Security
Registrar 22
SECTION 310. Computation of Interest 23
SECTION 311. Payment to Be in Proper Currency 23
SECTION 312. Extension of Interest Payment 23
ARTICLE FOUR Redemption of Securities 23
SECTION 401. Applicability of Article 23
SECTION 402. Election to Redeem; Notice
to Trustee 23
SECTION 403. Selection of Securities to
Be Redeemed 24
SECTION 404. Notice of Redemption 24
SECTION 405. Securities Payable on
Redemption Date 25
SECTION 406. Securities Redeemed in Part 26
ARTICLE FIVE Sinking Funds 26
SECTION 501. Applicability of Article 26
SECTION 502. Satisfaction of Sinking
Fund Payments with Securities 26
SECTION 503. Redemption of Securities for
Sinking Fund 27
ARTICLE SIX Covenants 27
SECTION 601. Payment of Principal,
Premium and Interest 27
SECTION 602. Maintenance of Office or Agency 27
SECTION 603. Money for Securities Payments
to Be Held in Trust 28
SECTION 604. Corporate Existence 29
SECTION 605. Maintenance of Properties 29
SECTION 606. Annual Officer's Certificate
as to Compliance 30
SECTION 607. Waiver of Certain Covenants 30
ARTICLE SEVEN Satisfaction and Discharge 30
SECTION 701. Satisfaction and Discharge
of Securities 30
SECTION 702. Satisfaction and Discharge of
Indenture 32
SECTION 703. Application of Trust Money 33
ARTICLE EIGHT Events of Default; Remedies 34
SECTION 801. Events of Default 34
SECTION 802. Acceleration of Maturity;
Rescission and Annulment 35
SECTION 803. Collection of Indebtedness and
Suits for Enforcement by Trustee 36
SECTION 804. Trustee May File Proofs of Claim 36
SECTION 805. Trustee May Enforce Claims
Without Possession of Securities 37
SECTION 806. Application of Money Collected 37
SECTION 807. Limitation on Suits 38
SECTION 808. Unconditional Right of Holders
to Receive Principal, Premium
and Interest 38
SECTION 809. Restoration of Rights and
Remedies 38
SECTION 810. Rights and Remedies Cumulative 39
SECTION 811. Delay or Omission Not Waiver 39
SECTION 812. Control by Holders of Securities 39
SECTION 813. Waiver of Past Defaults 39
SECTION 814. Undertaking for Costs 40
SECTION 815. Waiver of Stay or Extension Laws 40
ARTICLE NINE The Trustee 40
SECTION 901. Certain Duties and
Responsibilities 40
SECTION 902. Notice of Defaults 41
SECTION 903. Certain Rights of Trustee 42
SECTION 904. Not Responsible for Recitals
or Issuance of Securities 43
SECTION 905. May Hold Securities 43
SECTION 906. Money Held in Trust 43
SECTION 907. Compensation and Reimbursement 43
SECTION 908. Disqualification; Conflicting
Interests 44
SECTION 909. Corporate Trustee Required;
Eligibility 44
SECTION 910. Resignation and Removal;
Appointment of Successor 45
SECTION 911. Acceptance of Appointment
by Successor 46
SECTION 912. Merger, Conversion, Consolidation
or Succession to Business 47
SECTION 913. Preferential Collection of
Claims Against Company 47
SECTION 914. Co-trustees and Separate Trustees 48
SECTION 915. Appointment of Authenticating
Agent 49
ARTICLE TEN Holders' Lists and Reports by Trustee
and Company 51
SECTION 1001. Lists of Holders 51
SECTION 1002. Reports by Trustee and Company 51
ARTICLE ELEVEN Consolidation, Merger, Conveyance
or Other Transfer 51
SECTION 1101. Company May Consolidate, Etc.,
Only on Certain Terms 51
SECTION 1102. Successor Corporation
Substituted 52
ARTICLE TWELVE Supplemental Indentures 52
SECTION 1201. Supplemental Indentures
Without Consent of Holders 52
SECTION 1202. Supplemental Indentures
With Consent of Holders 54
SECTION 1203. Execution of Supplemental
Indentures 55
SECTION 1204. Effect of Supplemental
Indentures 55
SECTION 1205. Conformity With Trust
Indenture Act 55
SECTION 1206. Reference in Securities to
Supplemental Indentures 56
SECTION 1207. Modification Without
Supplemental Indenture 56
ARTICLE THIRTEEN Meetings of Holders; Action
Without Meeting 56
SECTION 1301. Purposes for Which Meetings
May Be Called 56
SECTION 1302. Call, Notice and Place of
Meetings 56
SECTION 1303. Persons Entitled to Vote at
Meetings 57
SECTION 1304. Quorum; Action 57
SECTION 1305. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment of
Meetings 58
SECTION 1306. Counting Votes and Recording
Action of Meetings 59
SECTION 1307. Action Without Meeting 59
ARTICLE FOURTEEN Immunity of Incorporators,
Stockholders,Officers and Directors 59
SECTION 1401. Liability Solely Corporate 59
ARTICLE FIFTEEN Subordination of Securities 60
SECTION 1501. Securities Subordinate to
Senior Indebtedness. 60
SECTION 1502. Payment Over of Proceeds
of Securities 60
SECTION 1503. Disputes with Holders of
Certain Senior Indebtedness 62
SECTION 1504. Subrogation 62
SECTION 1505. Obligation of the Company
Unconditional 62
SECTION 1506. Priority of Senior
Indebtedness Upon Maturity 63
SECTION 1507. Trustee as Holder of
Senior Indebtedness 63
SECTION 1508. Notice to Trustee to
Effectuate Subordination 63
SECTION 1509. Modification, Extension, etc.
of Senior Indebtedness 64
SECTION 1510. Trustee Has No Fiduciary
Duty to Holders of Senior
Indebtedness 64
SECTION 1511. Paying Agents Other Than the
Trustee 64
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired 64
SECTION 1513. Effect of Subordination
Provisions; Termination 64
Testimonium 66
Signatures and Seals 66
Acknowledgements 65
IES UTILITIES INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ________, 1995
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914(b)
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
(d) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
EXHIBIT 23(a)
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Amendment No. 1 to the
Registration Statement on Form S-3 of our report dated
February 3, 1995, in IES Utilities Inc.'s Form 10-K for the
year ended December 31, 1994, and to all references to our
firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Chicago, Illinois,
November 21, 1995
EXHIBIT 25(b)
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)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
IES UTILITIES, INC.
(Exact name of obligor as specified in its charter)
Iowa 42-0331370
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
IES Tower
200 First Street S.E.
P.O. Box 351
Cedar Rapids, Iowa 52406
(Address of principal executive offices) (Zip Code)
Subordinated Debentures
(Title of Indenture Securities)
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 Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The 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.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as
a part of this Statement of Eligibility.
1. A copy of the articles of association
of the trustee now in effect.*
2. A copy of the certificates of
authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of
the trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture
Act of 1939, as amended, the trustee, The First
National Bank of Chicago, a national banking
association organized and existing under the laws of
the United States of America, has duly caused this
Statement of Eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the
14th day of November, 1995.
The First National Bank of Chicago,
Trustee,
By /s/ John R. Prendiville
Vice President
*Exhibits 1, 2, 3 and 4 are herein incorporated by
reference to Exhibits bearing identical numbers in
Item 12 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 26 to the Registration
Statement on Form S-3 of The CIT Group Holdings,
Inc. filed with the Securities and Exchange
Commission on February 16, 1993 (Registration No. 33-
58418).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 14, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
IES Utilities, Inc. and The First National Bank of Chicago,
the undersigned, in accordance with Section 321(b) of the
Trust Indenture Act of 1939, as amended, hereby consents that
the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ John R. Prendiville
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670-0460
Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031 Page RC-1
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1995
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in C400 <-
Thousands RCFD BIL MIL THOU
ASSETS
1. Cash and balances due from
depository institutions (from
Schedule RC-A):
a. Noninterest-bearing balances
and currency and coin(1) 0081 3,184,875 1.a.
b. Interest-bearing balances(2) 0071 8,932,069 1.b.
2. Securities
a. Held-to-maturity securities
(from Schedule RC-B, column A) 1754 249,502 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column D) 1773 536,856 2.b.
3. Federal funds sold and securities
purchased under agreements to
resell in domestic offices of
the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold 0276 2,897,736 3.a.
b. Securities purchased under
agreements to resell 0277 1,417,129 3.b.
4. Loans and lease financing
receivables:
a. Loans and leases, net of
unearned income (from
Schedule RC-C) RCFD 2122 16,567,408 4.a.
b. LESS: Allowance for
loan and lease losses RCFD 3123 358,877 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 16,208,531 4.d.
5. Assets held in trading accounts 3545 13,486,931 5.
6. Premises and fixed assets
(including capitalized leases) 2145 516,279 6.
7. Other real estate owned
(from Schedule RC-M) 2150 11,216 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M) 2130 12,946 8.
9. Customers' liability to this
bank on acceptances outstanding 2155 501,943 9.
10.Intangible assets (from Schedule RC-M) 2143 111,683 10.
11.Other assets (from Schedule RC-F) 2160 1,258,270 11.
12.Total assets (sum of items 1 through 11) 2170 49,325,966 12.
(1) Includes cash items in process of collection and unposted
debits.
(2) Includes time certificates of deposit not held in trading
accounts.
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670-0460
Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031 Page RC-2
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
LIABILITIES
13.Deposits:
a. In domestic offices
(sum of totals of columns
A and C from Schedule
RC-E, part 1) RCON 2200 14,889,235 13.a.
(1) Noninterest-bearing
(1) RCON 6631 5,895,584 13.a.(1)
(2) Interest-
bearing RCON 6636 8,993,651 13.a.(2)
b. In foreign offices, Edge
and Agreement
subsidiaries,and IBFs
(from Schedule RC-E,
part II) RCFN 2200 13,289,760 13.b.
(1) Noninterest bearing RCFN 6631 315,549 13.b.(1)
(2) Interest-bearing RCFN 6636 12,974,211 13.b.(2)
14.Federal funds purchased and
securities sold under agreements
to repurchase in domestic offices
of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds purchased RCFD 0278 2,942,186 14.a.
b. Securities sold under agreements
to repurchase RCFD 0279 1,160,512 14.b.
15.a. Demand notes issued to
the U.S. Treasury RCON 2840 112,768 15.a.
b. Trading Liabilities RCFD 3548 7.872,221 15.b.
16. Other borrowed money:
a. With original maturity of
one year or less RCFD 2332 2,402,829 16.a.
b. With original maturity of
more than one year RCFD 2333 643,987 16.b.
17.Mortgage indebtedness and
obligations under capitalized
leases RCFD 2910 278,108 17.
18.Bank's liability on acceptance
executed and outstanding RCFD 2920 501,943 18.
19.Subordinated notes and debentures RCFD 3200 1,225,000 19.
20.Other liabilities
(from Schedule RC-G) RCFD 2930 981,938 20.
21.Total liabilities (sum of
items 13 through 20) RCFD 2948 46,300,487 21.
22.Limited-Life preferred stock
and related surplus RCFD 3282 0 22.
EQUITY CAPITAL
23.Perpetual preferred stock
and related surplus RCFD 3838 0 23.
24.Common stock RCFD 3230 200,858 24.
25.Surplus (exclude all
surplus related to preferred
stock) RCFD 3839 2,314,642 25.
26.a.Undivided profits and
capital reserves RCFD 3632 510,093 26.a.
b. Net unrealized holding gains
(losses) on available-for-sale
securities RCFD 8434 (880) 26.b.
27.Cumulative foreign currency
translation adjustments RCFD 3284 766 27.
28.Total equity capital (sum of items
23 through 27) RCFD 3210 3,025,479 28.
29.Total liabilities, limited-life
preferred stock, and equity
capital (sum of items 21, 22,
and 28) RCFD 3300 49,325,966 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 bank by independent
external
Number
auditors as of any date during 1993 . . . .. .RCFD 6724 N/A M.1.
1 = Independent audit of the bank 4 = Directors'examination of
conducted in accordance the bank performed by other
with generally accepted auditing external auditors (may be
standards by a certified public required by state chartering
accounting firm which submits
a report on the bank
2 = Independent audit of the bank's 5 = Review of the bank's financial
parent holding company conducted statements by external auditors
in accordance with generall 6 = Compilation of the bank's
accepted auditing standards by a financial statements by
certified public accounting firm external auditors
which submits a report on the 7 = Other audit procedures
consolidated holding company (excluding tax
(but not on the bank separately) preparation work)
3 = Directors' examination of the bank 8 = No external audit work
conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required
by state chartering authority)
(1) Includes total demand deposits and noninterest-bearing
time and savings deposits.
