As filed with the Securities and Exchange Commission on August 31, 1995.
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
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)
_______________________
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. ______
CALCULATION OF REGISTRATION FEE
Title of Each Class Proposed Maximum Amount of
of Securities to be Aggregate Offering Registration Fee
Registered Price (1) (1)
Debt Securities $250,000,000 $86,207
(1) Estimated solely for the purpose of calculating the
amount of the registration fee.
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 August 31, 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
(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 August ___, 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, and June 30,
1995; and
3. The Company's Current Reports on Form 8-K dated
March 15, 1995, April 27, 1995 and May 15, 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 BONDS 6
DESCRIPTION OF THE 1940 INDENTURE 18
DESCRIPTION OF THE ISU 1923 INDENTURE 24
EXPERTS 28
LEGAL MATTERS 28
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 (the "Merger") 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 to reduce short-term debt, to
retire in October 1995, $50 million principal amount of the
Company's First Mortgage Bonds, Series X, 9.42% due 1995, and
to retire in September 1996, $15 million principal amount of
the Company's First Mortgage Bonds, Series J, 6 1/4% due 1996,
and 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,
June 30, 1995
(unaudited) 1994 1993 1992 1991 1990
Income Summary:
Operating
revenues $675,844 $685,366 $713,750 $610,262 $621,993 $595,477
Operating
income 126,903 135,591 143,329 100,361 101,600 96,225
Net income 54,240 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) 53,326 60,296 67,056 43,562 45,393 43,569
Cash dividends
declared on common
stock 53,000 52,000 31,300 24,721 45,321 49,516
Ratio of earnings
to fixed charges(2) 2.88 3.18 3.41 2.49 2.64 2.65
June 30, 1995 (unaudited) (3)
Percent of
Actual Capitalization
Capitalization Summary:
Long-term debt $480,503 48.0%
Preferred stock 18,320 1.8%
Common equity 503,397 50.2%
Total $1,002,220 100.0%
(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,
and 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 BONDS
General
The Securities may be issued from time to time in one or
more series. If the Securities are issued as Collateral Trust
Bonds ("Bonds"), those 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. The Original Mortgage as amended
and supplemented by various supplemental indentures including
one or more supplemental indentures relating to the Bonds, is
hereinafter referred to as the "Mortgage." The summaries
herein concerning the 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 Prospectus Supplement, or a
supplement thereto, for a description of the following terms
of the series of Bonds in respect of which this Prospectus is
being delivered: (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) 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 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 offered hereby 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 offered hereby) 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, 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 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 Merger (which
are now, subsequent to the 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 lien 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
offered hereby) 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.
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) 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.") 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. The 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)
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 Securities" 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 Event 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, or 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 June 30, 1995, the line of
credit was being used to support commercial paper.
Additionally, the Trustee has an $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 and the
ISU 1923 Corporate Trustee. 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
or the ISU 1923 Indenture. In either case, the Trustee may be
required to eliminate such conflicting interest by resigning
as the Trustee, the 1940 Indenture Trustee or the ISU 1923
Corporate 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 herein 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 herein 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 herein, 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
(other than expressly excepted property) owned by the Company
prior to the Merger, subject only to permitted encumbrances
and liens. All property and franchises (other than expressly
excepted property) thereafter 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 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 Merger on the 1940 Indenture
The Merger 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 the 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 June 30, 1995, on the basis of the most restrictive
provisions described above, the Company would have been
entitled to issue an aggregate of approximately $264 million
of additional bonds under the 1940 Indenture (approximately
$214 million on the basis of Adjusted Net Bondable Additions
and approximately $50 million on the basis of previously
retired bonds).
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.
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 the 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, 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 comply with the provisions 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 SECURITIES - 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 herein 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
herein 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 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 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 Merger 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 Merger on the ISU 1923 Indenture
The Merger 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 Mortgage.
(Section 133) Subsequent to the 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 3)
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 June 30, 1995, on the basis of the most
restrictive provisions described above, the Company would have
been entitled to issue approximately $67 million of additional
bonds under the ISU 1923 Indenture (approximately $62 million
on the basis of the value of the Unapplied Balance of Property
Additions and approximately $5 million on the basis of retired
bonds).
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)
The ISU Indenture Trustees are not required to take
action to enforce any remedy unless provided with satisfactory
indemnity against 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 provisions 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 SECURITIES -
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.
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 $ 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 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 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.
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 Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent Post-Effective
Amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range 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
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining liability under
the Securities Act of 1933, each such Post-Effective Amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a Post-
Effective Amendment any of the securities which remain unsold
at the termination of the offering.
(4) That for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
II - 2
Insofar as indemnification for liabilities arising under
the Securities Act of 1933, 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
POWER OF ATTORNEY
Each person whose signature appears below authorizes Lee
Liu, Blake O. Fisher, Jr. and Richard A. Gabbianelli, or any
one of them to execute in the name of each such person who is
then an officer or director of the Registrant, and to file any
amendments to this Registration Statement, including post-
effective amendments, necessary or advisable to enable the
Registrant to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in respect thereof, which
amendments may make such changes in such Registration
Statement as the above-named attorneys, or any of them, may
deem appropriate.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 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 31st day of
July, 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, such Registration Statement has been signed below on the
31st day of July, 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 Officer &
Blake O. Fisher, Jr. Chief Financial Officer and Director
(Principal Financial Officer)
/s/ Richard A. Gabbianelli Controller & Chief Accounting Officer
Richard A. Gabbianelli (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
II - 5
EXHIBIT INDEX
Exhibit Number List of Exhibits
1(a) Proposed form of Underwriting Agreement relating to
Collateral Trust Bonds ("Bonds").
1(b) Proposed form of Underwriting Agreement relating to
Securities other than Bonds (to be filed by amendment).
*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).
*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 Reference Exhibit
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)
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)
II - 6
Number Dated as of IE File Reference Exhibit
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.
*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)
ll - 7
*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)
5 Opinion of Stephen W. Southwick, Vice President,
General Counsel & Secretary as to the
legality of the Securities (including consent of
counsel).
*12 Ratio of Earnings to Fixed Charges (Filed as Exhibit
12 to the Company's Form 10-Q for
the quarter ended June 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).
24 Power of Attorney (included on p. II - 4
of the Registration Statement).
25 Form T-1 Statement of Eligibility under The Trust
Indenture Act of 1939 of The First
National Bank of Chicago, as Trustee under The
Mortgage.
26 Form of Letter to Prospective Purchasers regarding
the Securities.
__________________
* 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 - 8
Exhibit 1(a)
Proposed form of Underwriting Agreement relating to
Collateral Trust Bonds ("Bonds").
FORM OF UNDERWRITING AGREEMENT
For the Purchase of Collateral Trust Bonds
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 Collateral Trust Bonds (defined below) 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 such Bonds are
issued, to the Closing Date (hereinafter defined). The
aggregate principal amount of such Collateral Trust Bonds
being sold hereunder is hereinafter referred to as the
"Bonds."
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.
The use of the term "Underwriter" herein shall not be deemed
to establish or admit that a purchaser of the Bonds is an
"underwriter" of the Bonds as such term is defined in and used
under the Securities Act of 1933, as amended ("Securities
Act").
SECTION 3. Description of the Bonds. The Bonds
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 of Mortgage and Deed of
Trust, dated as of September 1, 1993, of the Company to The
First National Bank of Chicago, as Trustee ("Trustee"), as
amended and supplemented to the date hereof, and as it will be
supplemented by a supplemental indenture ("Supplemental
Indenture") relating to the Bonds. Said Indenture of Mortgage
and Deed of Trust, as so supplemented, is hereinafter referred
to as the "Mortgage." The Bonds shall bear interest at the
rate per annum specified in Schedule I hereto. The Bonds are
more fully described in the Prospectus hereinafter referred to
and in the Company's letter dated ________________, to
prospective purchasers of the Bonds. The Bonds will be a
portion of the Company's debt securities issued under the
Mortgage ("Collateral Trust Bonds").
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-_________) ("Registration Statement") for the registration
of $250,000,000 principal amount of the Company's Collateral
Trust Bonds under the Securities Act, and 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 forming a part
of the Registration Statement at the time the Registration
Statement heretofore initially became effective, including all
documents incorporated by reference therein 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
Collateral Trust Bonds other than the Bonds) 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 Collateral Trust Bonds other than
the Bonds), 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 Bonds 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 Collateral Trust Bonds other than the
Bonds) 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 the Representative and to Dorsey & Whitney
("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
Collateral Trust Bonds other than the Bonds) 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 Mortgage, 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 respective dates of their
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
Collateral Trust Bonds other than the Bonds) 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 paragraph
(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 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 Mortgage.
(d) The Federal Energy Regulatory Commission has
authorized the issuance and sale of the Bonds; such
authorization is in full force and effect; the issuance and
sale of the Bonds 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 Bonds 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 Bonds by
the Underwriters;
(e) The Company is a corporation duly incorporated and
validly existing 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 Bonds 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 Mortgage; the Supplemental Indenture will be substantially
in the form filed as an exhibit to the Registration Statement;
the Supplemental 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 as limited by the Public
Utility Registration Act pursuant to Ch. 476 of the Iowa Code
et seq., and except as limited, as to enforcement, by
bankruptcy, insolvency and reorganization laws, other laws of
general applicability relating to or affecting creditors'
rights and general equity principles; and the Bonds and the
Mortgage will conform in all material respects to the
descriptions thereof in the Prospectus;
(g) The Class "A" Bonds, upon the basis
of which the Bonds are to be issued, have been duly
authorized, and, when issued and delivered to the
Trustee pursuant to the Mortgage, 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 and secured by the 1940 Indenture (as
defined in the Mortgage); the ______________
Supplemental Indenture to the 1940 Indenture will be
substantially in the form filed as an exhibit to the
Registration Statement; the ________________
Supplemental Indenture has been duly authorized and,
when executed and delivered by the Company and the
trustee under the 1940 Indenture, will constitute a
valid and binding instrument, enforceable in
accordance with its terms, except as limited by
bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of mortgagees' or
other creditors' rights and general equity
principles; and the Class "A" Bonds and the 1940
Indenture will conform in all material respects to
the descriptions thereof in the Prospectus;
(h) The ISU 1923 Indenture (as defined in
the Mortgage) conforms in all material respects to
the description thereof in the Prospectus; and
(i) 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 Bonds 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 reoffering of the Bonds 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 Bonds 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 Bonds 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 Bonds 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
Bonds by the Representative, the Company agrees to make the
Bonds 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 The
First National Bank of Chicago, 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 Bonds 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 Bonds 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 Bonds that they had severally
agreed to purchase hereunder, as hereinabove
provided, and, in addition, the principal amount of
Bonds 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 Bonds 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
Bonds 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 paragraph (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 Bonds 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 Bonds, 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 Bonds,
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
Bonds 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 Bonds 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 Bonds, (iii) the preparation,
execution, filing, and recording of the Supplemental
Indenture, (iv) the qualification of the Bonds 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), (v)
any fees charged by securities rating services for
rating the Bonds and (vi) 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 Collateral
Trust Bonds (other than Collateral Trust Bonds of
one or more other series having a maturity or
maturities different from the date of maturity of
the Bonds and with respect to which the Company
shall have entered into a contract for sale on the
same day as the effective date of this Underwriting
Agreement) without the consent of the Representative
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
Bonds 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 Federal Energy Regulatory
Commission shall have authorized the issuance and
sale of the Bonds and such authorization 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, Bradley & Riley, P.C. , special Iowa
counsel to the Company, and Dorsey & Whitney,
counsel for the Underwriters, opinions in
substantially the form and substance set forth in
Exhibits A, B, C and D 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 Bonds 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 E 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) to the best knowledge of the signer, the Federal
Energy Regulatory Commission has authorized the
issuance and sale of the Bonds and such
authorization is in full force and effect; (ii)
since the most recent date as of which information
is given in the Prospectus, as it may be 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 be 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 Bonds
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 Bonds, 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 paragraph (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 Federal Energy Regulatory
Commission shall have authorized the issuance and
sale of the Bonds and such authorization 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 paragraph (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 Mortgage; 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 Bonds 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 Collateral Trust Bonds other than the
Bonds 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 Section 7(d) hereof, relating
to an event occurring prior to the payment for and
delivery to such person of the Bonds 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 Bonds.
(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 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 Bonds.
(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
Bonds. 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
Bonds 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 Bonds, 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 Bonds or enforce contracts for the
sale of the Bonds 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 Bonds 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 Bonds. Any termination hereof pursuant
to this Section 11 shall be without liability of any party to
any other party, except as otherwise provided in paragraph (h)
of Section 7.
SECTION 12. Applicable Law. This Underwriting
Agreement and the Bonds 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 Bonds 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, SE,
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 Bonds
and the price to be paid to the Company therefor (stated as a
percentage of the principal amount of the Bonds), exclusive of
accrued interest 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 Bonds 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 _________________
Registration Statement (No. 33-_______________)
Securities:
Designation:
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 Utilities Inc.]
[date]
Re: IES Utilities Inc.
$ Collateral Trust Bonds, % Series
Due
Ladies and Gentlemen:
I am counsel for IES Utilities Inc. (the "Company")
and have participated in the issuance and sale by the Company
to you of $ aggregate principal amount of
Collateral Trust Bonds % Series due
(the "Bonds"), issued under the Company's Indenture of
Mortgage and Deed of Trust, dated as of September 1, 1993, to
The First National Bank of Chicago, as Trustee (the
"Trustee"), as amended and supplemented and as it is further
supplemented by the _______ Supplemental Indenture dated as of
________, 199__ (the "Supplemental Indenture") (said Mortgage
and Deed of Trust as so supplemented is herein referred to as
the "Mortgage") 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 Bylaws of the Company, certified by the
Secretary of the Company;
(e) the Mortgage;
(f) the Company's Indenture of Mortgage and Deed of
Trust, dated as of August 1, 1940, to The First
National Bank of Chicago, as trustee, as amended and
supplemented and as it is further supplemented by
the ________ Supplemental Indenture, dated as of
______, 199_, the "1940 Supplemental Indenture"),
pursuant to which certain First Mortgage Bonds of
the Company (the "Class 'A' Bonds") have been issued
(said Mortgage and Deed of Trust as so amended and
supplemented is herein referred to as the "1940
Indenture");
(g) certified copies of the Resolutions of the
Board of Directors of the Company dated __________ ,
199__, including the Addendum to the Resolution of
the Board setting forth the terms and conditions of
the Bonds approved by the Executive Vice President
dated _________ , 199__, pertaining to the
authorization and sale of the Bonds and related
matters;
(h) the Company's Indenture of Mortgage and Deed of
Trust, dated as of February 1, 1923, to The First
National Bank of Chicago and Richard D. Manella, as
trustees, as amended and supplemented (said Mortgage
and Deed of Trust as so amended and supplemented is
herein referred to as the "ISU 1923 Indenture");
(i) the Application filed by the Company with the
Federal Energy Regulatory Commission seeking
authority for and approval of the issuance and sale
of Bonds and a copy of the Letter of Authority
issued by the Chief Accountant of such Commission,
dated ________, 199__, authorizing and approving the
issuance and sale of the Bonds;
(j) counterparts of the Underwriting Agreement
executed by you and the Company;
(k) Abstracts of Title and Certificates for title
searches covering all pertinent county records in
the various counties in which property of the
Company is situated, together with title opinions of
counsel deemed by me to be competent and reputable
and upon whom I believe I am justified in relying as
to such matters;
(l) copies of franchises of the Company and the
proceedings under which they were granted; and
(m) 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., the parent company of
IES Utilities Inc., had telephone conversations with, public
officials. I have not examined the Bonds, except a specimen
thereof.
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.
As to all matters of Iowa law covered by the opinion of even
date herewith of Bradley & Riley, P.C., special Iowa counsel
to the Company, I have, with your approval, relied upon such
opinion. I have reviewed said opinion and believe that it is
satisfactory and that you and we are justified in relying
thereon.
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 Bonds, the Mortgage, the Class "A" Bonds, the
1940 Indenture and the ISU 1923 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 Class "A" Bonds have been duly authorized and,
when duly executed, authenticated, issued and delivered to the
Trustee, will constitute valid and legally binding obligations
of the Company entitled to the benefits and security provided
by the 1940 Indenture, except as limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
enforcement of mortgagees' or other creditors' rights
generally or by general principles of equity.
5. The Bonds 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 Mortgage, except as limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of mortgagees' or other creditors'
rights generally or by general principles of equity.
6. The Mortgage and the 1940 Indenture have been duly
and validly authorized by all necessary corporate action of
the Company, have been duly executed, acknowledged and
delivered by the Company and are valid and legally binding
instruments enforceable in accordance with their respective
terms, except as limited by laws with respect to or affecting
the remedies to enforce the security provided by the Mortgage
or the 1940 Indenture, which laws do not, in my opinion, make
inadequate the remedies necessary for realization of the
benefits of such security, and except as limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of mortgagees' or other creditors'
rights generally or by general principles of equity.
7. 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 Bylaws of the
Company, the Mortgage, the 1940 Indenture or the ISU 1923
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.
8. The Company has good and valid title to all of the
principal properties subject to the lien of the Mortgage, the
1940 Indenture, and/or the ISU 1923 Indenture.
9. The references in the Mortgage to the descriptions
in the 1940 Indenture and the ISU 1923 Indenture of the
properties subject to the lien of the 1940 Indenture and the
ISU 1923 Indenture are adequate to constitute the Mortgage a
lien on such properties, subject only to (a) Permitted Liens
(as defined in the Mortgage), (b) the prior lien of the 1940
Indenture, (c) the prior lien of the ISU 1923 Indenture and
(d) minor restrictions, exceptions and reservations in
conveyance and defects which are of a nature ordinarily found
in property of a similar character and magnitude; the Mortgage
constitutes a valid direct mortgage lien upon all physical
properties in the State of Iowa acquired by the Company after
the date of the Mortgage, subject only to (a) Permitted Liens
(as defined in the Mortgage), (b) the prior lien of the 1940
Indenture, (c) the prior lien of the ISU 1923 Indenture, (d)
minor restrictions, exceptions and reservations in conveyance
and defects which are of a nature ordinarily found in property
of a similar character and magnitude and (e) liens, charges or
encumbrances existing or placed thereon at the time of
acquisition.
10. The 1940 Indenture constitutes a valid direct first
mortgage lien upon all properties subject to the lien thereof,
subject only to (a) Permitted Encumbrances as defined therein,
and (b) minor restrictions, exceptions and reservations in
conveyance and defects which are of a nature ordinarily found
in property of a similar character and magnitude; the 1940
Indenture constitutes a valid direct first mortgage lien upon
all physical properties and franchises in the State of Iowa
acquired by the Company after the date of the 1940 Indenture,
subject only to Permitted Encumbrances (as defined therein)
and to any liens, charges or encumbrances existing or placed
thereon at the time of acquisition, and to the lien of the ISU
1923 Indenture with respect to certain property.
11. The ISU 1923 Indenture constitutes a valid direct
first mortgage lien upon all properties subject to the lien
thereof, subject only to (a) Permitted Encumbrances as defined
therein, and (b) minor restrictions, exceptions and
reservations in conveyance and defects which are of a nature
ordinarily found in property of a similar character and
magnitude; the ISU 1923 Indenture constitutes a valid direct
first mortgage lien upon all physical properties and
franchises in the State of Iowa acquired by the Company after
the date of the ISU 1923 Indenture and prior to the Merger,
subject only to Permitted Liens (as defined therein) and to
any liens, charges or encumbrances existing or placed thereon
at the time of acquisition.
12. The Mortgage, 1940 Indenture and ISU 1923 Indenture
have been duly filed and recorded in all jurisdictions in
which it is necessary for the Mortgage, 1940 Indenture and ISU
1923 Indenture to be filed and recorded in order to constitute
a lien of record on the property subject thereto; appropriate
financing statements have been filed in the appropriate
offices in the State of Iowa; and each such recording or
filing is fully effective to give constructive notice of the
contents of each such recorded or filed document to all
purchasers, mortgagees and secured parties of properties
covered thereby.
13. The Chief Accountant of the Federal Energy
Regulatory Commission ("FERC") has authorized the issuance and
sale of the Bonds, which authorization is, to the best of my
knowledge, still in full force and effect; the issuance and
sale of the Bonds 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 Bonds 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
Bonds by you.
14. The Company has the legal right to function and
operate as an electric and gas utility in the State of Iowa,
holds valid and subsisting franchises authorizing it to carry
on the utility business in which it is engaged in all
incorporated communities having a population of 1,000 or more
[(except in _________________, Iowa, where operations have not
been impaired by the expiration of such franchises)], and has
adequate licenses and permits where required by law to
maintain electric and gas transmission and distribution lines
through unincorporated areas and over public lands not located
in incorporated communities and over private rights-of-way in
the territory which it serves.
15. 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.
16. 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.
17. 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.
With respect to the opinions set forth in Paragraphs 4, 5
and 6 above, I call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing
and other requirements upon persons (such as the Trustee, as
defined in the Mortgage, or other purchasers pursuant to the
remedial provisions of the Mortgage or the 1940 Indenture) who
seek to acquire, possess or use nuclear production facilities.
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.
$ Collateral Trust Bonds, % 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 Collateral Trust Bonds, % Series due
____________ (the "Bonds"), issued under the Company's
Indenture of Mortgage and Deed of Trust, dated as of September
1, 1993, to The First National Bank of Chicago, as Trustee
(the "Trustee"), as amended and supplemented and as it is
further supplemented by the _______ Supplemental Indenture
dated as of _________________, 199__. Said Indenture of
Mortgage and Deed of Trust as so supplemented is herein
referred to as the "Mortgage."
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 opinions of even date herewith addressed to you by
Stephen W. Southwick, Counsel for IES Utilities Inc., and
Bradley & Riley, P.C., special Iowa counsel to the Company, as
to the matters covered in such opinions relating to Iowa law.
We have reviewed said opinions and believe that they are
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, titles to property, franchises or the lien of the
Mortgage, or the lien of the IELP 1940 Mortgage or the ISU
1923 Mortgage (the terms "IELP 1940 Mortgage" and "ISU 1923
Mortgage" as used herein, having the same meanings as those
terms in the Mortgage). We also have not examined the Bonds,
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 Mortgage 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 in accordance
with its terms, except as limited by laws with respect to or
affecting the remedies to enforce the security provided by the
Mortgage, which laws do not, in our opinion, make inadequate
the remedies necessary for the realization of the benefits of
such security, and except as limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
enforcement of mortgagees' or other creditors' rights
generally or by general principles of equity; and the Mortgage
has been duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act").
2. The Bonds 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 Mortgage, except as limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of mortgagees' or other creditors'
rights generally or by general principles of equity.
3. The summaries of the terms of the Mortgage, the
Bonds, the Class "A" Bonds, the IELP 1940 Mortgage and the ISU
1923 Mortgage 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 Bylaws of the
Company or the Mortgage, or the IELP 1940 Mortgage, or to the
best of our 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. 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 Bonds, which authorization is, to the best of our
knowledge, still in full force and effect; the issuance and
sale of the Bonds 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 Bonds
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.
With respect to the opinions set forth in Paragraphs 1
and 2 above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing
and other requirements upon persons (such as the Trustee, as
defined in the Mortgage, or other purchasers pursuant to the
remedial provisions of the Mortgage and the IELP 1940
Indenture) who seek to acquire, possess or use nuclear
production facilities.
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 Bradley & Riley, P.C.]
[date]
Re: IES Utilities Inc.
$___________ Collateral Trust Bonds, __% Series
Due ________
Ladies and Gentlemen:
We have acted as special Iowa counsel for IES Utilities
Inc., an Iowa corporation (the "Company"), in connection with
the issuance and sale by the Company to you pursuant to the
Underwriting Agreement dated _____________, 199__
("Underwriting Agreement") between the Company and you, of
$___________ in principal amount of Collateral Trust Bonds,
__% Series due ___________ (the "Bonds"), issued under the
Company's Indenture of Mortgage and Deed of Trust, dated as of
September 1, 1993, to The First National Bank of Chicago, as
Trustee (the "Trustee"), as amended and supplemented and as it
is further supplemented by the _________ Supplemental
Indenture dated as of __________, 199___ (the "Supplemental
Indenture"). Said Indenture and Deed of Trust as so
supplemented is herein referred to as the "Mortgage." This
opinion is being delivered pursuant to Section 8(d) 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 Bonds, 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 Mortgage.
2. The Mortgage is a valid and legally binding
instrument enforceable in accordance with its terms.
3. The references in the Mortgage to the descriptions
in the Company's Indenture of Mortgage and Deed of Trust,
dated as of August 1, 1940, to The First National Bank of
Chicago, as trustee, as amended and supplemented, and the
Indenture of Mortgage and Deed of Trust, dated as of February
1, 1923, to The First National Bank of Chicago and Richard D.
Manella, as trustees, as amended and supplemented, of the
properties subject to the lien of the 1940 Indenture and the
ISU 1923 Indenture, respectively, are adequate to constitute
the Mortgage a lien on such properties in accordance with the
terms of the Mortgage.
4. The Mortgage is in proper form to create a valid
lien on the properties subject thereto pursuant to the terms
of the Mortgage.
5. The Mortgage will constitute a valid direct mortgage
lien, in accordance with the terms of the Mortgage, upon all
properties in the State of Iowa acquired by the Company after
the date of the Mortgage.
[Qualifications to opinions to be stated here, including
bankruptcy, principles of equity, practical realization,
title, filing and recording, priority, perfection, UCC
exceptions, and limitation as to Iowa law.]
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 except that Stephen
W. Southwick, Esq. and 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 D
[Letterhead of Dorsey & Whitney]
[date]
Re: IES Utilities Inc.
$_____________ Collateral Trust Bonds, % Series
Due _____________
Ladies and Gentlemen:
We address this letter to you as the Underwriter named in
the Underwriting Agreement dated _______________, 199__
("Underwriting Agreement"), with respect to the $___________
aggregate principal amount of Collateral Trust Bonds, ___%
Series due ___________ ("Bonds"), to be issued by IES
Utilities Inc., an Iowa corporation ("Company"), under the
Indenture of Mortgage and Deed of Trust, dated as of September
1, 1993, from the Company to The First National Bank of
Chicago, as Trustee, as amended and supplemented and as it is
further supplemented by the ________ Supplemental Indenture
dated as of __________, 199__ ("Supplemental Indenture").
Said Indenture of Mortgage and Deed of Trust as so
supplemented is herein called the "Mortgage." This letter is
given pursuant to Section 8(d) of the Underwriting Agreement.
As your counsel, we have, among other things, (i)
reviewed the recorded corporate proceedings of the Company
relative to the issue and sale by it of the Bonds, (ii)
cooperated with officers of the Company and its counsel and
accountants in the preparation of the Registration Statement
and Prospectus as such terms are defined in the Underwriting
Agreement, (iii) reviewed the application filed by the Company
with the Federal Energy Regulatory Commission ("FERC") under
the Federal Power Act, as amended, in Docket Nos.
____________________ and ______________ for authority to issue
and sell certain securities, (iv) participated in the
preparation of the Supplemental Indenture, the Underwriting
Agreement and other documents with respect to the Bonds and
(v) determined that the Securities and Exchange Commission
("SEC") declared the Registration Statement effective and
examined the order issued by the Chief Accountant of the FERC
in such Dockets.
Based upon our examination of such statutes, decisions,
documents and other matters of law and fact as we consider
relevant for purposes of this letter, it is our 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 Mortgage 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
Mortgage is a valid and legally binding instrument enforceable
in accordance with its terms, except as limited by laws with
respect to or affecting the remedies to enforce the security
provided by the Mortgage, which laws do not, in our opinion,
make inadequate the remedies necessary for the realization of
the benefits of such security, and except as limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of mortgagees' or other creditors'
rights generally or by general principles of equity; and the
Mortgage has been duly qualified under the Trust Indenture Act
of 1939, as amended ("Trust Indenture Act");
4. the Bonds 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 Mortgage, except as limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of mortgagees' or other creditors'
rights generally or by general principles of equity;
5. the Bonds, the Mortgage, the Class "A" Bonds, the
IELP 1940 Indenture and the ISU 1923 Indenture (as such terms
are defined in the Mortgage) conform as to legal matters with
the statements concerning them made in the Prospectus, and
such statements accurately set forth the matters respecting
the Bonds, the Mortgage, the Class "A" Bonds, the IELP 1940
Indenture and the ISU 1923 Indenture required to be set forth
in the Prospectus;
6. the Chief Accountant of the FERC has authorized the
issuance and sale of the Bonds, which authorization is, to the
best of our knowledge, still in full force and effect; the
issuance and sale of the Bonds 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 Bonds
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); 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.
For the purpose of rendering the opinions set forth in
this letter, we have relied, as to various questions of fact
material to such opinions, upon the representations made in
the Underwriting Agreement and upon certificates of officers
of the Company and public officials. We have also examined
originals, or copies of originals certified to our
satisfaction, of such agreements, documents, certificates and
other statements of government officials and other
instruments, as we have considered relevant and necessary as a
basis for such opinions. We have also assumed the
authenticity of all documents submitted to us as originals,
the genuineness of all signatures, the legal capacity of all
natural persons and the conformity with the original documents
of any copies thereof submitted to us for our examination.
With respect to the opinions set forth in Paragraphs 3
and 4 above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing
and other requirements upon persons (such as the Trustee, as
defined in the Mortgage, or other purchasers pursuant to the
remedial provisions of the Mortgage and the IELP 1940
Indenture) who seek to acquire, possess or use nuclear
production facilities.
The foregoing opinions are limited to the laws of the
United States of America and the States of Iowa and New York.
This letter is being delivered solely for the benefit of
the persons to whom it is addressed; accordingly, it may not
be quoted, filed with any governmental authority or other
regulatory agency or otherwise circulated or utilized for any
other purpose without our prior written consent.
Very truly yours,
DORSEY & WHITNEY
EXHIBIT E
Pursuant to Section 8(e) 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 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, 199__ 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
common 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. They have read the latest unaudited ratios of
earnings to fixed charges and the latest earnings coverage
ratios and the amounts of additional first mortgage bonds or
preferred stock of the Company issuable on the basis of such
coverage ratios included in the most recent document
incorporated by reference in the Prospectus containing such
ratios and amounts and, in each case, have found such ratios
and amounts to be in agreement with the appropriate records of
the Company and the computations to be arithmetically correct.
5. 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 paragraphs 3 and 4
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 1(b)
Proposed form of Underwriting Agreement relating to
Securities other than Bonds (to be filed by amendment).
Exhibit 4(c)
Proposed form of Fourth Supplemental Indenture
establishing the series of Bonds (including form of Bonds).
______________________________________________________________
______________________________________________________________
IES UTILITIES INC.
(formerly known as Iowa Electric Light and Power Company)
TO
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
______________
Fourth Supplemental Indenture
Dated as of , 1995
______________
TO
INDENTURE OF MORTGAGE and DEED OF TRUST
Dated as of September 1, 1993
______________________________________________________________
FOURTH SUPPLEMENTAL INDENTURE, dated as of _______,
1995 (the "Fourth Supplemental Indenture"), made by and
between IES UTILITIES INC. (formerly known as Iowa Electric
Light and Power Company), a corporation organized and existing
under the laws of the State of Iowa (the "Company"), and THE
FIRST NATIONAL BANK OF CHICAGO, a national banking association
organized and existing under the laws of the United States of
America (the "Trustee"), as Trustee under the Indenture of
Mortgage and Deed of Trust dated as of September 1, 1993,
hereinafter mentioned.
WHEREAS, the Company has heretofore executed and
delivered its Indenture of Mortgage and Deed of Trust dated as
of September 1, 1993, to the Trustee, for the security of the
securities of the Company to be issued thereunder (the
"Collateral Trust Bonds" or "Bonds"), and the said Indenture
has been supplemented by three supplemental indentures, dated
as of October 1, 1993, November 1, 1993, and March 1, 1995,
which Indenture as so supplemented and to be hereby
supplemented is hereinafter referred to as the "Indenture";
and
WHEREAS, the Company desires to create a series of
Collateral Trust Bonds to be issued under the Indenture, to be
known as Collateral Trust Bonds, ___ % Series Due _____
(the "Collateral Trust Bonds of the ___ % Series"); and
WHEREAS, the Company, in the exercise of the powers
and authority conferred upon and reserved to it under the
provisions of the Indenture, has duly resolved and determined
to make, execute and deliver to the Trustee a Fourth
Supplemental Indenture in the form hereof for the purposes
herein provided; and
WHEREAS, pursuant to Granting Clause Third and
Section 1401 of the Indenture, the Company may from time to
time execute one or more supplemental indentures in order to
better assure, convey and confirm unto the Trustee any
property subject to the Lien of the Indenture; and
WHEREAS, the Company desires to so assure, convey
and confirm property described in Exhibit A to this
Supplemental Indenture; and
WHEREAS, all conditions and requirements necessary
to make this Fourth Supplemental Indenture a valid, binding
and legal instrument have been done, performed and fulfilled,
and the execution and delivery hereof have been in all
respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
THAT IES UTILITIES INC., in consideration of the
purchase and ownership from time to time of the Bonds and the
service by the Trustee, and its successors, under the
Indenture and of One Dollar to it duly paid by the Trustee at
or before the ensealing and delivery of these presents, the
receipt whereof is hereby acknowledged, hereby covenants and
agrees to and with the Trustee and its successors in the trust
under the Indenture, for the benefit of those who shall hold
the Bonds as follows:
ARTICLE I.
DESCRIPTION OF COLLATERAL TRUST BONDS OF THE ___ % SERIES
SECTION 1. The Company hereby creates a new series
of Bonds to be known as "Collateral Trust Bonds of the ___ %
Series." The Collateral Trust Bonds of the ___ % Series shall
be executed, authenticated and delivered in accordance with
the provisions of, and shall in all respects be subject to,
all of the terms, conditions and covenants of the Indenture,
as supplemented and modified.
The commencement of the first interest period shall
be ________. The Collateral Trust Bonds of the ___ % Series
shall mature _______, and shall bear interest at the rate of
____% per annum, payable semi-annually on the ____ day of
_________ and the ___ day of _____________ in each year,
commencing on _______________. The person in whose name any
of the Collateral Trust Bonds of the ____ % Series is
registered at the close of business on any record date (as
hereinafter defined) with respect to any interest payment date
shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such
Collateral Trust Bonds of the ___ % Series upon any transfer
or exchange subsequent to the record date and prior to such
interest payment date; provided, however, that if and to the
extent the Company shall default in the payment of the
interest due on such interest payment date, such defaulted
interest shall be paid as provided in Section 307 of the
Indenture.
The term "record date" as used in this Section with
respect to any interest payment date shall mean the
____________ or ___________, as the case may be, next
preceding the semi-annual interest payment date, or, if such
________ or _________ shall be a legal holiday or a day on
which banking institutions in the Borough of Manhattan, the
City of New York, State of New York or in the City of Chicago,
State of Illinois, are authorized by law to close, then the
next preceding day which shall not be a legal holiday or a day
on which such institutions are so authorized to close.
SECTION 2. The Collateral Trust Bonds of the ___ %
Series shall be issued only as registered Bonds without
coupons of the denomination of $1,000, or any integral
multiple of $1,000, appropriately numbered. The Collateral
Trust Bonds of the ___ % Series may be exchanged, upon
surrender thereof, at the agency of the Company in the City of
Chicago, Illinois, or, at the option of the holder, at the
agency of the Company in the City of New York for one or more
new Collateral Trust Bonds of the ___ % Series of other
authorized denominations, for the same aggregate principal
amount, subject to the terms and conditions set forth in the
Indenture.
Collateral Trust Bonds of the ___ % Series may be
exchanged or transferred without expense to the registered
owner thereof except that any taxes or other governmental
charges that may be imposed in connection with such transfer
or exchange shall be paid by the registered owner requesting
such transfer or exchange as a condition precedent to the
exercise of such privilege.
SECTION 3. The Collateral Trust Bonds of the ___ %
Series and the Trustee's Certificate of Authentication shall
be substantially in the following forms respectively:
[FORM OF FACE OF BOND]
IES UTILITIES INC.
COLLATERAL TRUST BOND, ___ % SERIES DUE _____________.
No. ________ $_________
IES UTILITIES INC., a corporation organized and
existing under the laws of the State of Iowa (the "Company,"
which term shall include any successor corporation as defined
in the Indenture hereinafter referred to), for value received,
hereby promises to pay to ______________ or registered
assigns, the sum of _____________ dollars on the _____ day of
____________, in any coin or currency of the United States of
America which at the time of payment is legal tender for
public and private debts, and to pay interest thereon in like
coin or currency from ___________, payable semi-annually, on
the _____ day of _______ and ___________ in each year, at the
rate of _____% per annum, until the Company's obligation with
respect to the payment of such principal shall be discharged
as provided in the Indenture hereinafter mentioned. The
interest so payable on any ___ day of ______ or ________ will,
subject to certain exceptions provided in the Fourth
Supplemental Indenture dated as of _______, 1995, be paid to
the person in whose name this Bond is registered at the close
of business on the immediately preceding ______ or
___________, as the case may be. Both principal of, and
interest on, this Bond are payable at the agency of the
Company in the City of Chicago, Illinois, or, at the option of
the holder, at the agency of the Company in the City of New
York.
This Bond shall not be entitled to any benefit under
the Indenture or any indenture supplemental thereto, or become
valid or obligatory for any purpose, until the form of
certificate endorsed hereon shall have been signed by or on
behalf of The First National Bank of Chicago, the Trustee
under the Indenture, or a successor trustee thereto under the
Indenture, or by an authenticating agent duly appointed by the
Trustee in accordance with the terms of the Indenture.
The provisions of this Bond are continued on the
reverse hereof and such continued provisions shall for all
purposes have the same effect as though fully set forth at
this place.
IN WITNESS WHEREOF, IES Utilities Inc. has caused
this Bond to be signed (manually or by facsimile signature) in
its name by an Authorized Executive Officer, as defined in
this Indenture, and its corporate seal (or a facsimile
thereof) to be hereto affixed and attested (manually or by
facsimile signature) by an Authorized Executive Officer, as
defined in this Indenture.
Dated ________________ IES UTILITIES INC.
By _____________________________
Authorized Executive Officer
ATTEST:
____________________________
Authorized Executive Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Bonds of the series designated
therein referred to in the within-mentioned Indenture and
Fourth Supplemental Indenture dated as of ______________,
1995.
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee,
By __________________
Authorized Officer
[FORM OF REVERSE OF BOND]
This Collateral Trust Bond of the ___ % Series is
one of a duly authorized issue of bonds of the Company (the
"Collateral Trust Bonds"), of the series hereinafter
specified, all issued and to be issued under and equally
secured by an Indenture of Mortgage and Deed of Trust (the
"Indenture"), dated as of September 1, 1993, executed by the
Company to The First National Bank of Chicago, as Trustee (the
"Trustee"), as supplemented by four supplemental indentures,
(including a Fourth Supplemental Indenture dated as of
________, 1995), each executed by the Company to said Trustee
(said Indenture, as so supplemented, being herein sometimes
referred to as the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
description of the properties mortgaged and pledged, the
nature and extent of the security, the rights of registered
owners of the Collateral Trust Bonds and of the Trustee in
respect thereof, and the terms and conditions upon which the
Collateral Trust Bonds are, and are to be, secured. The
Collateral Trust Bonds may be issued in series, for various
principal sums, may mature at different times, may bear
interest at different rates and may otherwise vary as provided
in the Indenture. This Collateral Trust Bond of the ___ %
Series is one of a series designated as the "Collateral Trust
Bonds of the ___ % Series Due __________" (the "Collateral
Trust Bonds of the ___ % Series") of the Company, in an
aggregate principal amount of up to $__________, issued under
and secured by the Indenture and described in the Fourth
Supplemental Indenture thereto dated as of ________, 1995 (the
"Fourth Supplemental Indenture") between the Company and the
Trustee.
The Collateral Trust Bonds of the ____ % Series
will not be redeemable for any purpose prior to _____________,
except by reason of eminent domain, and then at par value. On
or after ____________, the Collateral Trust Bonds of the ___ %
Series will be redeemable, at the option of the Company, in
whole at any time or in part from time to time, upon at least
30 days notice by mail, at the redemption prices (expressed as
a percentage of principal amount) set forth in the following
table, with accrued interest thereon to the redemption date:
12 Month Period
Beginning Redemption Price
In case an Event of Default, as defined in the
Indenture, shall occur, the principal of all the Collateral
Trust Bonds of the ___ % Series at any such time outstanding
under the Indenture may be declared or may become due and
payable, upon the conditions and in the manner and with the
effect provided in the Indenture. The Indenture provides that
such declaration may be rescinded under certain circumstances.
No reference herein to the Indenture and no
provision of this Bond or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and premium, if any,
and interest on this Bond at the times, place and rate, in the
coin or currency, and in the manner, herein prescribed.
This Bond may be exchanged or transferred without
expense to the registered owner hereof except that any taxes
or other governmental charges that may be imposed in
connection with such transfer or exchange shall be paid by the
registered owner requesting such transfer or exchange as a
condition precedent to the exercise of such privilege.
Prior to due presentment of this Bond for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in
whose name this Bond is registered as the absolute owner
hereof for all purposes, whether or not this Bond be overdue,
and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
As provided in the Indenture, no recourse shall be
had for the payment of the principal of or premium, if any, or
interest on any Collateral Trust Bond 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 the Indenture,
against, and no personal liability whatsoever shall attach to,
or be incurred by, 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 the Indenture and all the
Collateral Trust Bonds are solely corporate obligations 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 the Indenture and the
issuance of the Collateral Trust Bonds.
[END OF BOND FORM]
ARTICLE II.
ISSUE OF COLLATERAL TRUST BONDS OF THE ___ % SERIES.
SECTION 1. Pursuant to the terms of Section 401 of
the Indenture, the Company hereby exercises the right to
obtain the authentication of $__________ principal amount of
Collateral Trust Bonds. All such Bonds shall be Collateral
Trust Bonds of the ___ % Series.
SECTION 2. Such Collateral Trust Bonds of the ___ %
Series may be authenticated and delivered prior to the filing
for recordation of this Fourth Supplemental Indenture.
ARTICLE III.
REDEMPTION.
The Collateral Trust Bonds of the ____ % Series will
not be redeemable for any purpose prior to _____________,
except by reason of eminent domain, and then at par value. On
or after ___________, the Collateral Trust Bonds of the ______
% Series will be redeemable, at the option of the Company, in
whole at any time or in part from time to time, upon at least
30 days notice by mail, at the redemption prices (expressed as
a percentage of principal amount) set forth in the following
table, with accrued interest thereon to the redemption date:
12 Month Period
Beginning Redemption Price
ARTICLE IV.
DESCRIPTION OF PROPERTY.
To secure the payment of the principal of, premium,
if any, and interest, if any, on all Collateral Trust Bonds
issued under the Indenture and Outstanding (as defined in the
Indenture), when payable in accordance with the provisions
thereof, and to secure the performance by the Company of, and
its compliance with, the covenants and conditions of the
Indenture, the Company hereby grants, bargains, sells,
conveys, assigns, transfers, mortgages, pledges, sets over and
confirms to the Trustee a security interest in, all right,
title and interest of the Company in and to the property
described in Exhibit A to this Fourth Supplemental Indenture.
TO HAVE AND TO HOLD all said property hereby
granted, bargained, sold, conveyed, assigned, transferred,
mortgaged, pledged, set over and confirmed, or in which a
security interest has been granted by the Company in this
Fourth Supplemental Indenture, unto the Trustee and its
successors and assigns forever, but in trust nevertheless upon
the trusts, for the purposes, and subject to all the
exceptions and reservations, terms, conditions, provisions and
restrictions of the Indenture, and for the equal and
proportionate benefit and security of all present and future
holders of the Collateral Trust Bonds, without any preference,
priority or distinction of any one Collateral Trust Bond over
any other Collateral Trust Bond by reason of priority in the
issue or negotiation thereof or otherwise, except as may
otherwise be expressly provided in the Indenture, but subject,
however, to all the conditions, agreements, covenants,
exceptions, limitations, restrictions and reservations
expressed or provided in the deeds or other instruments of
record affecting the property, or any part or portion thereof,
insofar as the same are at the time of execution hereof in
force and effect and permitted by law.
ARTICLE V.
THE TRUSTEE.
The Trustee hereby accepts the trusts hereby
declared and provided, and agrees to perform the same upon the
terms and conditions in the Indenture set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or
sufficiency of this Fourth Supplemental Indenture or the
due execution hereof by the Company or for or in respect
of the recitals contained herein, all of which recitals
are made by the Company solely. In general, each and
every term and condition contained in Article Eleven of
the Indenture shall apply to this Supplemental Indenture
with the same force and effect as if the same were herein
set forth in full, with such omissions, variations and
modifications thereof as may be appropriate to make the
same conform to this Fourth Supplemental Indenture.
ARTICLE VI.
MISCELLANEOUS PROVISIONS.
This Fourth Supplemental Indenture may be
simultaneously executed in any number of counterparts, each of
which when so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Fourth Supplemental 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 ILLINOIS )
) ss:
COUNTY OF COOK )
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
FIRST NATIONAL BANK OF CHICAGO, 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]
EXHIBIT A
DESCRIPTION OF PROPERTY
(a) Lee County, filed 3-10-95, Book 95S, Page 15B3
The Southwest Quarter of the Northwest Quarter of the
Northeast Quarter (SW1/4 NW1/4 NE1/4) of Section Twenty-seven (27),
Township Sixty-five (65) North, Range Five (5) West of the
Fifth Principal Meridian, City of Keokuk, Lee County, Iowa,
except that part deeded to the State of Iowa for Highway
purposes, reserving to grantors a right-of-way for road
purposes not exceeding 40 feet in width from the existing
highway entrance to property owned by grantors immediately
South of the property conveyed. Said road right-of-way being
on the westerly 40 feet of the property conveyed and parallel
to the present highway.
(b) Marshall County, filed 3-20-95, I.D. 9504433
Lot 1 and Lot 3/10 of Tweed's Subdivision in the SW1/4 of
Section 32, Township 84 North, Range 17 West of the 5th P.M.,
Marshall County, Iowa.
(c) Marshall County, filed 3-20-95, I.D. 9504434
Lot 2 and Lot 2 of Lot 10 of Tweed's Subdivision of the SW1/4
of Section 32, Township 84 North, Range 17 West of the 5th
P.M., Marshall County, Iowa.
(d) Delaware County, filed 3-30-95, Book 54, Page 160
The East two hundred (200) feet of Lot Four (4) of West
Commercial Subdivision Part of the Northwest Quarter (NW1/4) of
the Northeast Quarter (NE1/4) of Section Thirty-One (31),
Township Eighty-Nine North (89N), Range Five West (R5W) of the
Fifth Principal Meridian, City of Manchester, Delaware County,
Iowa, according to the plat recorded in Book 6 Plats, Page
113.
(e) Dallas County, filed 4-3-95, Book 784, Page 1000
The North 32 feet of Lot 11 and Lot 12, Block 10, except the
South ten (10) feet of the North 32 feet of the West 22 feet
of Lot 11, Block 10, Town of Dexter, Iowa
(f) Buena Vista County, filed 4-25-95, Book 60, Page 842
Commencing at the Northeast (NE) corner of the Northeast
Quarter (NE1/4) of Section Thirty-four (34), Township Ninety-
three North (T-93-N), Range Thirty-five West (R-35-W) of the
5th P.M. in Buena Vista County, Iowa exclusive of Road Right
of Way, this is the point of beginning thence West (W) Two
Hundred feet (200'), thence South (S) Two Hundred feet (200'),
thence East (E) Two Hundred feet (200'), thence North (N) Two
Hundred feet (200') to the point of beginning containing point
nine two (.92) acres more or less.
(g) Lee County, filed 5-2-95, Book 95S, Page 30B7
All that part of the West One-half of the Southwest Quarter of
the Southeast Quarter (W1/2, SW1/4, SE1/4), Section Twenty-two (22),
lying east of the US Highway 218 and 61 (Keokuk By-Pass Route)
and south of the centerline of a sanitary sewer, of which the
Northerly Twenty (20) feet is subject to a permanent sewer
easement to the City of Keokuk, dated February 1984; the
Northwest Quarter of the Northwest Quarter of the Northeast
Quarter (NW1/4, NW1/4, NE1/4) Section Twenty-seven (27) and the West
One Hundred Sixty-five (165) feet of the North One Hundred
Thirty-two (132) feet of the Northeast Quarter of the
Northwest Quarter of the Northeast Quarter (NE1/4, NW1/4, NE1/4),
Section Twenty-seven (27), all located in Township Sixty-five
(65) North, Range Five (5) West of the Fifth Principal
Meridian, City of Keokuk, Lee County, Iowa, containing Twelve
and Four-tenths (12.4) acres, more or less; AND further
excepting therefrom the following: A parcel of land located
in the SW1/4, SE1/4 of Section 22, Twp 65N, R5W of the 5th Principal
Meridian, Lee County, Iowa, more described as: Commencing at
the Southwest corner of said Section 22; thence N 90 degrees 00'E,
2707.9 ft. along the south line of the said Section 22 to the
presently established easterly right of way line of Primary
Road No. 22, the Point of Beginning; thence N 03 degrees 58-1/2`E, 290.4
ft. along said right of way line; thence N 02 degrees 42'W, 55.1 ft.
along said right of way line; thence S37 degrees 47-1/2`E, 126.6 ft.;
thence S00 degrees 01-1/2` W, 75.0 ft. thence S29 degrees 15-1/2`W, 194.5 ft.
to the Point of Beginning; containing 0.39 acres, more or less.
(h) Appanoose County, filed 5-15-95, Book 131, Page 440
The South 425 feet of the East one-half of the Southwest
Quarter of the Northeast Quarter of Section 25, Township 69,
Range 18 West except beginning at the Southwest corner of the
East one-half of the Southwest Quarter of the Northeast
Quarter of said Section 25, thence North 225 feet, thence East
444 feet, thence South 195 feet, thence East 140 feet, thence
South 30 feet to the South line of the Northeast Quarter,
thence West 584 feet to the place of beginning, said exception
containing 2.3 acres more or less, also except the coal
underlying all the above described real estate.
(i) Buchanan County, filed 7-10-95, File No. 1995RO1725
Lots 1, 2, 3, 4 and 5, Block 23, Winthrop, Buchanan County, Iowa.
(j) Guthrie County, filed 7-19-95, Book 424, Page 1001
Lot 4, Block 24 of the Original Town of Guthrie Center, Iowa
(k) Linn County, filed 8-1-95, Book 3212, Page 382
Lot 5 and N-ly 15 feet and 4 inches of Lot 6 and all of Lots
7, 8, 9, 10 and 11, May, Palmer and Thompson's replat of Block
One (1) in West Cedar Rapids, Linn County, State of Iowa and
SE-ly 32-1/6 feet of Lot 6, Block One (1) May, Palmer and
Thompson's replat of Block One (1) in West Cedar Rapids, Linn
County, Iowa
Exhibit 4(f)
Proposed form of Sixty-second Supplemental Indenture
providing for the issuance of Class "A" Bonds under the
1940 Indenture.
IES UTILITIES INC.
(formerly known as Iowa Electric Light and Power Company)
To
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
__________________________
Sixty-second Supplemental
Indenture
Dated as of _________, 1995
__________________________
SUPPLEMENTAL TO
INDENTURE OF MORTGAGE AND DEED OF TRUST
DATED AS OF AUGUST 1, 1940
THIS SIXTY-SECOND SUPPLEMENTAL INDENTURE, dated as
of _________, 1995, between IES UTILITIES INC. (formerly known
as Iowa Electric Light and Power Company), a corporation
organized and existing under the laws of the State of Iowa
(hereinafter called the "Company"), party of the first part,
and THE FIRST NATIONAL BANK OF CHICAGO, as Trustee, a national
banking association organized and existing under the laws of
the United States of America, party of the second part,
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and
delivered its Indenture of Mortgage and Deed of Trust, dated
as of August 1, 1940 (hereinafter called the "Original
Indenture"), to the Trustee to secure the first mortgage bonds
(herein sometimes referred to as "first mortgage bonds") of
the Company, issuable in series; and
WHEREAS, the Company thereafter executed and
delivered certain Supplemental Indentures, First through Sixty-
first, inclusive, for the various purposes of creating
additional series of first mortgage bonds, conveying and
confirming unto the Trustee certain additional property,
correcting the description of a certain parcel of land as set
forth in the Original Indenture and amending the Original
Indenture in certain respects (the Original Indenture and the
above referred to Supplemental Indentures together with this
Sixty-second Supplemental Indenture being herein sometimes
collectively referred to as the "Indenture"); and
WHEREAS, there have been issued and are now
outstanding under the Indenture the following described first
mortgage bonds:
First Mortgage Bonds Principal Amount
Series J, 6-1/4% due 1996 $15,000,000
Series L, 7-7/8% due 2000 15,000,000
Series M, 7-5/8% due 2002 30,000,000
Series P and Q, 6.70% due 2006 9,200,000
Series X, 9.42% due 1995 50,000,000
Series Y, 8-5/8% due 2001 60,000,000
Series Z, 7.60% due 1999 50,000,000
Collateral Series A due 2008 50,000,000
Collateral Series B due 2023 50,000,000
Collateral Series C due 2000 50,000,000
Pollution Control Collateral Series A, due 2023 10,200,000
Pollution Control Collateral Series B, due 2023 7,000,000
Pollution Control Collateral Series C, due 2023 2,200,000
WHEREAS, the Original Indenture in Section 158
provides that the Company, when authorized by resolution of
the Board, and the Trustee, may at any time, subject to the
restrictions in the Original Indenture contained, enter into
such an indenture supplemental to the Original Indenture as
may or shall be by them deemed necessary or desirable for the
purpose of creating any new series of first mortgage bonds or
of adding to the covenants and agreements of the Company in
the Original Indenture contained, other covenants and
agreements thereafter to be observed by the Company and for
any other purpose not inconsistent with the terms of the
Original Indenture and which shall not impair the security of
the same; and
WHEREAS, the Company desires to execute and deliver
this Sixty-second Supplemental Indenture, in accordance with
the provisions of the Original Indenture, for the purpose of
providing for the creation of a new series of first mortgage
bonds to be designated "First Mortgage Bonds, Collateral
Series D, Due ____________" (hereinafter called the "Bonds of
Series D" or the "Bonds"), and for the purpose of adding to
the covenants and agreements of the Company in the Original
Indenture contained, other covenants and agreements hereafter
to be observed by the Company;
WHEREAS, the Bonds are to be issued to The First
National Bank of Chicago as trustee (the "New Mortgage
Trustee") under the Company's Indenture of Mortgage and Deed
of Trust dated as of September 1, 1993 (the "New Mortgage"),
and are to be owned and held by the New Mortgage Trustee as
"Class 'A' Bonds" (as defined in the New Mortgage) in
accordance with the terms of the New Mortgage; and
WHEREAS, all acts and proceedings required by law
and by the Articles of Incorporation of the Company, including
all action requisite on the part of its stockholders,
directors and officers, necessary to make the Bonds, when
executed by the Company, authenticated and delivered by the
Trustee and duly issued, the valid, binding and legal
obligations of the Company, and to constitute the Indenture a
valid and binding mortgage and deed of trust for the security
of the Bonds in accordance with the terms of the Indenture and
the terms of the Bonds, have been done and taken; and the
execution and delivery of this Sixty-second Supplemental
Indenture have been in all respects duly authorized.
NOW, THEREFORE, THIS SIXTY-SECOND SUPPLEMENTAL
INDENTURE WITNESSETH, that, in order further to secure the
payment of the principal of, premium, if any, and interest, if
any, on all first mortgage bonds at any time issued and
outstanding under the Indenture, according to their tenor,
purport and effect, and to secure the performance and
observance of all the covenants and conditions in said first
mortgage bonds and in the Indenture contained (except any
covenant of the Company with respect to the refund or
reimbursement of taxes, assessments or other governmental
charges on account of the ownership of any first mortgage
bonds, or the income derived therefrom, for which the holders
of such first mortgage bonds shall look only to the Company
and not to the property mortgaged and pledged) and for and in
consideration of the premises and of the mutual covenants
herein contained and of the purchase and acceptance of the
Bonds by the holders thereof, and of the sum of $1.00 duly
paid to the Company by the Trustee at or before the ensealing
and delivery hereof, and for other valuable considerations,
the receipt whereof is hereby acknowledged, the Company has
executed and delivered this Sixty-second Supplemental
Indenture, and, by these presents does grant, bargain, sell,
release, convey, assign, transfer, mortgage, pledge, set over,
warrant and confirm unto the Trustee the properties of the
Company described and referred to in the Original Indenture
and all indentures supplemental thereto, as thereby conveyed
or intended so to be, and not heretofore specifically
released, together with all and singular the plants,
buildings, improvements, additions, tenements, hereditaments,
easements, rights, privileges, licenses and franchises and all
other appurtenances whatsoever belonging or in any wise
appertaining to any of the property hereby mortgaged or
pledged, or intended so to be, or any part thereof, now owned
or which may hereafter be owned or acquired by the Company,
and the reversion and reversions, remainder and remainders,
and the tolls, rents, revenues, issues, earnings, income,
product and profits thereof, and of every part and parcel
thereof, and all the estate, right, title, interest, property,
claim and demand of every nature whatsoever of the Company, at
law or in equity, or otherwise howsoever, in, of and to such
property and every part and parcel thereof, including the
following property acquired by the Company since the execution
and delivery of the Sixty-first Supplemental Indenture dated
as of March 1, 1995:
(a) Lee County, filed 3-10-95, Book 95S, Page 15B3
The Southwest Quarter of the Northwest Quarter of the
Northeast Quarter (SW1/4 NW1/4 NE1/4) of Section Twenty-seven (27),
Township Sixty-five (65) North, Range Five (5) West of the
Fifth Principal Meridian, City of Keokuk, Lee County, Iowa,
except that part deeded to the State of Iowa for Highway
purposes, reserving to grantors a right-of-way for road
purposes not exceeding 40 feet in width from the existing
highway entrance to property owned by grantors immediately
South of the property conveyed. Said road right-of-way being
on the westerly 40 feet of the property conveyed and parallel
to the present highway.
(b) Marshall County, filed 3-20-95, I.D. 9504433
Lot 1 and Lot 3/10 of Tweed's Subdivision in the SW1/4 of
Section 32, Township 84 North, Range 17 West of the 5th P.M.,
Marshall County, Iowa.
(c) Marshall County, filed 3-20-95, I.D. 9504434
Lot 2 and Lot 2 of Lot 10 of Tweed's Subdivision of the SW1/4
of Section 32, Township 84 North, Range 17 West of the 5th
P.M., Marshall County, Iowa.
(d) Delaware County, filed 3-30-95, Book 54, Page 160
The East two hundred (200) feet of Lot Four (4) of West
Commercial Subdivision Part of the Northwest Quarter (NW1/4) of
the Northeast Quarter (NE1/4) of Section Thirty-One (31),
Township Eighty-Nine North (89N), Range Five West (R5W) of the
Fifth Principal Meridian, City of Manchester, Delaware County,
Iowa, according to the plat recorded in Book 6 Plats, Page
113.
(e) Dallas County, filed 4-3-95, Book 784, Page 1000
The North 32 feet of Lot 11 and Lot 12, Block 10, except the
South ten (10) feet of the North 32 feet of the West 22 feet
of Lot 11, Block 10, Town of Dexter, Iowa
(f) Buena Vista County, filed 4-25-95, Book 60, Page 842
Commencing at the Northeast (NE) corner of the Northeast
Quarter (NE1/4) of Section Thirty-four (34), Township Ninety-
three North (T-93-N), Range Thirty-five West (R-35-W) of the
5th P.M. in Buena Vista County, Iowa exclusive of Road Right
of Way, this is the point of beginning thence West (W) Two
Hundred feet (200'), thence South (S) Two Hundred feet (200'),
thence East (E) Two Hundred feet (200'), thence North (N) Two
Hundred feet (200') to the point of beginning containing point
nine two (.92) acres more or less.
(g) Lee County, filed 5-2-95, Book 95S, Page 30B7
All that part of the West One-half of the Southwest Quarter of
the Southeast Quarter (W1/2, SW1/4, SE1/4), Section Twenty-two (22),
lying east of the US Highway 218 and 61 (Keokuk By-Pass Route)
and south of the centerline of a sanitary sewer, of which the
Northerly Twenty (20) feet is subject to a permanent sewer
easement to the City of Keokuk, dated February 1984; the
Northwest Quarter of the Northwest Quarter of the Northeast
Quarter (NW1/4, NW1/4, NE1/4) Section Twenty-seven (27) and the West
One Hundred Sixty-five (165) feet of the North One Hundred
Thirty-two (132) feet of the Northeast Quarter of the
Northwest Quarter of the Northeast Quarter (NE1/4, NW1/4, NE1/4),
Section Twenty-seven (27), all located in Township Sixty-five
(65) North, Range Five (5) West of the Fifth Principal
Meridian, City of Keokuk, Lee County, Iowa, containing Twelve
and Four-tenths (12.4) acres, more or less; AND further
excepting therefrom the following: A parcel of land located
in the SW1/4, SE1/4 of Section 22, Twp 65N, R5W of the 5th Principal
Meridian, Lee County, Iowa, more described as: Commencing at
the Southwest corner of said Section 22; thence N 90 degrees 00'E,
2707.9 ft. along the south line of the said Section 22 to the
presently established easterly right of way line of Primary
Road No. 22, the Point of Beginning; thence N 03 degrees 58-1/2`E, 290.4
ft. along said right of way line; thence N 02 degrees 42'W, 55.1 ft.
along said right of way line; thence S37 degrees 47-1/2`E, 126.6 ft.;
thence S00 degrees 01-1/2` W, 75.0 ft. thence S29 degrees 15-1/2`W,
194.5 ft. to the Point of Beginning; containing 0.39 acres, more or less.
(h) Appanoose County, filed 5-15-95, Book 131, Page 440
The South 425 feet of the East one-half of the Southwest
Quarter of the Northeast Quarter of Section 25, Township 69,
Range 18 West except beginning at the Southwest corner of the
East one-half of the Southwest Quarter of the Northeast
Quarter of said Section 25, thence North 225 feet, thence East
444 feet, thence South 195 feet, thence East 140 feet, thence
South 30 feet to the South line of the Northeast Quarter,
thence West 584 feet to the place of beginning, said exception
containing 2.3 acres more or less, also except the coal
underlying all the above described real estate.
(i) Buchanan County, filed 7-10-95, File No. 1995RO1725
Lots 1, 2, 3, 4 and 5, Block 23, Winthrop, Buchanan County, Iowa.
(j) Guthrie County, filed 7-19-95, Book 424, Page 1001
Lot 4, Block 24 of the Original Town of Guthrie Center, Iowa
(k) Linn County, filed 8-1-95, Book 3212, Page 382
Lot 5 and N-ly 15 feet and 4 inches of Lot 6 and all of Lots
7, 8, 9, 10 and 11, May, Palmer and Thompson's replat of Block
One (1) in West Cedar Rapids, Linn County, State of Iowa and
SE-ly 32-1/6 feet of Lot 6, Block One (1) May, Palmer and
Thompson's replat of Block One (1) in West Cedar Rapids, Linn
County, Iowa
TO HAVE AND TO HOLD all and singular the lands,
properties, estates, rights, franchises, privileges and
appurtenances mortgaged, conveyed, pledged or assigned as
aforesaid, or intended so to be, together with all the
appurtenances thereunto appertaining, unto the Trustee and its
successors and assigns forever, upon the trusts, for the uses
and purposes and under the terms and conditions and with the
rights, privileges and duties as in the Indenture set forth;
Subject, however, to the reservations, exceptions,
limitations and restrictions contained in the several deeds,
leases, servitudes, contracts or other instruments through
which the Company acquired and/or claims title to and/or
enjoys the use of the aforesaid properties; and subject also
to Permitted Encumbrances (as defined in Section 24 of the
Original Indenture) and, as to any property acquired by the
Company since the execution and delivery of the Original
Indenture, to any liens thereon existing, and to any liens for
unpaid portions of the purchase money placed thereon, at the
time of such acquisition, but only to the extent that such
liens are permitted by Sections 72 and 83 of the Original
Indenture, as amended, and Section 7 of this Sixty-second
Supplemental Indenture;
BUT IN TRUST, NEVERTHELESS, for the equal and
proportionate use, benefit, security and protection of those
who from time to time shall hold the first mortgage bonds and
coupons authenticated and delivered under the Indenture and
duly issued by the Company, without any discrimination,
preference or priority of any one first mortgage bond or
coupon over any other by reason of priority in the time of
issue, sale or negotiation thereof or otherwise, except as
provided in Section 69 of the Original Indenture, so that,
subject to said provisions, each and all of said first
mortgage bonds and coupons shall have the same right, lien and
privilege under the Indenture and shall be equally and ratably
secured thereby (except as any sinking, amortization,
improvement, renewal or other fund, or any other covenants or
agreements established in accordance with the provisions of
the Original Indenture, may afford additional security for the
first mortgage bonds of any particular series), and shall have
the same proportionate interest and share in the Trust Estate
(as defined in the Original Indenture), with the same effect
as if all of the first mortgage bonds and coupons had been
issued, sold and negotiated simultaneously on the date of the
delivery of the Original Indenture; and in trust for enforcing
payment of the principal of the first mortgage bonds and of
the interest and premium, if any, thereon, according to the
tenor, purport and effect of the first mortgage bonds and
coupons and of the Indenture, and for enforcing the terms,
provisions, covenants and stipulations therein and in the
first mortgage bonds set forth, and upon the trusts, uses and
purposes and subject to the covenants, agreements and
conditions set forth and declared in the Indenture;
AND THIS SIXTY-SECOND SUPPLEMENTAL INDENTURE FURTHER
WITNESSETH, that the Company hereby covenants and agrees to
and with the Trustee and its successors and assigns forever as
follows:
SECTION 1. There shall be, and is hereby created, a
new series of first mortgage bonds, known as and entitled
"First Mortgage Bonds, Collateral Series D, Due _________,"
and the form thereof shall be substantially as hereinafter set
forth.
The Bonds of Series D shall be issued and delivered
to the New Mortgage Trustee under the New Mortgage as the
basis for the authentication and delivery under the New
Mortgage of a series of securities ("Collateral Trust
Securities"). As provided in the New Mortgage, the Bonds of
Series D will be registered in the name of the New Mortgage
Trustee, subject to the provisions of the New Mortgage, for
the benefit of the holders of all securities from time to time
outstanding under the New Mortgage, and the Company shall have
no interest therein. The Bonds of Series D will not be
transferable except to a successor trustee under the New
Mortgage.
Any payment or deemed payment by the Company under
the New Mortgage of the principal of or interest, if any, on
the Collateral Trust Securities (other than by the application
of the proceeds of a payment in respect of the Bonds of Series
D) shall, to the extent thereof, be deemed to satisfy and
discharge the obligation of the Company, if any, to make a
payment of principal of or interest, if any, on such Bonds of
Series D, as the case may be, which is then due.
The principal amount of the Bonds of Series D shall
be limited to $__________, except in case of the issuance of
Bonds as provided in Section 14 of the Original Indenture on
account of mutilated, lost, stolen, or destroyed Bonds. The
Bonds of Series D shall be registered Bonds only without
coupons of the denomination of $1,000 and any multiple of
$1,000, and of such respective amounts of each of said
denominations as may be executed by the Company and delivered
to the Trustee for authentication and delivery.
Notwithstanding the provisions of Section 7 of the Original
Indenture to the contrary, no reservation of unissued coupon
Bonds shall be required with respect to the Bonds of Series D.
All Bonds of Series D shall mature ___________, and shall not
bear interest, except that if the Company should default in
payment of principal on a Bond of Series D, such Bond shall
bear interest on such defaulted principal at the rate of 6%
per annum (to the extent that payment of such interest is
enforceable under applicable law) until the Company's
obligation with respect to the payment of such principal shall
be discharged. The principal, premium, if any, and the
interest, if any, on the Bonds of Series D shall be payable at
the office of the Trustee in the City of Chicago, State of
Illinois, or at the option of the holder, at the principal
corporate trust office of First Chicago Trust Company of New
York in the Borough of Manhattan in the City of New York, in
any coin or currency of the United States of America which at
the time of payment shall be legal tender for public and
private debts. The Bonds of Series D shall be subject to
redemption under certain circumstances specified in Section 54
of the Original Indenture as amended. The Bonds of Series D
shall be redeemed no later than the redemption of the
Collateral Trust Securities then being redeemed, and at a
redemption price equal to the redemption price (excluding
interest other than interest on defaulted principal, if any)
applicable to such redemption of Collateral Trust Securities.
Notwithstanding Section 11 of the Original
Indenture, the Company may execute, and the Trustee shall
authenticate and deliver, definitive Bonds of Series D in
typewritten form.
Subject to the provisions of Section 8 of the
Original Indenture, all definitive Bonds of Series D shall be
interchangeable for other Bonds of Series D of a different
authorized denomination or denominations, as requested by the
holder surrendering the same, upon surrender to the agency of
the Company in the City of Chicago, Illinois, or, at the
option of the holder, at the agency of the Company in the City
of New York. Anything contained in Section 13 of the Original
Indenture notwithstanding, upon such interchange of Bonds of
Series D, no charge may be made by the Company except the
payment of a sum sufficient to reimburse the Company for any
stamp tax or other governmental charge incident thereto.
The Trustee is hereby appointed Registrar of the
Bonds of Series D for the purpose of registering and
transferring Bonds of Series D as in Section 12 of the
Original Indenture provided. Bonds of Series D may also be so
registered and transferred at the principal corporate trust
office of First Chicago Trust Company of New York in the
Borough of Manhattan in the City of New York, which company is
hereby authorized to act as co-Registrar of Bonds of Series D
in the City of New York. In case any Bonds of Series D shall
be redeemed in part only, any delivery pursuant to Section 97
of the Original Indenture of a new Bond or Bonds of Series D
of an aggregate principal amount equal to the unredeemed
portion of such Bond of Series D shall, at the option of the
registered owner, be made by the co-Registrar. For all
purposes of Articles Eleven and Eighteen of the Original
Indenture, First Chicago Trust Company of New York in the City
of New York, as the New York Paying Agent for Bonds of Series
D, shall be deemed to be the agent of the Trustee for the
purpose of receiving all or any part, as may be directed by
the Trustee, of any deposit for the purpose of redeeming, or
of paying at maturity, any Bonds of Series D, and any money so
deposited with First Chicago Trust Company of New York in the
City of New York, upon the direction of the Trustee, in trust
for the purpose of paying the redemption price of, or of
paying at maturity, any Bonds of Series D, shall be deemed to
constitute a deposit in trust with, and to be held in trust
by, the Trustee in accordance with the provisions of Article
Eleven or Eighteen of the Original Indenture.
So long as any Bonds of Series D shall be
outstanding, in addition to the offices or agencies required
to be maintained by the provisions of the Original Indenture,
the Company shall keep or cause to be kept at an office or
agency to be maintained by the Company in the Borough of
Manhattan, the City of New York, books for the registration
and transfer of Bonds pursuant to the foregoing provisions of
this Section and to the provisions of the Original Indenture.
SECTION 2. For the purpose of redemption under
certain circumstances specified in Section 54 of the Original
Indenture, as amended, by the application of cash received by
the Trustee as the result of the taking by eminent domain or
of the purchase by a public authority of properties of the
Company, the Bonds shall be redeemable at a special redemption
price of 100% of the principal amount thereof together with
accrued interest, if any, to the date fixed for redemption.
SECTION 3. The Bonds and the certificate of
authentication to be borne by such Bonds shall be
substantially in the following forms, respectively:
[FORM OF FACE OF BOND]
No. $
IES UTILITIES INC.
FIRST MORTGAGE BOND, COLLATERAL SERIES D
Due _____________
IES UTILITIES INC. (formerly known as Iowa Electric
Light and Power Company) (hereinafter called the "Company"), a
corporation of the State of Iowa, for value received, hereby
promises to pay to ________________ or registered assigns, on
the first day of _________, at the office of the Trustee in
the City of Chicago, Illinois, or, at the option of the
registered owner, at the principal corporate trust office of
First Chicago Trust Company of New York in the Borough of
Manhattan, the City of New York, $____________ in any coin or
currency of the United States of America which at the time of
payment shall be legal tender for public and private debts.
This Bond shall not bear interest, except that, if the Company
should default in the payment of principal hereof, this Bond
shall bear interest on such defaulted principal at the rate of
6% per annum (to the extent that payment of such interest is
enforceable under applicable law) until the Company's
obligation with respect to the payment of such principal shall
be discharged as provided in the Indenture hereinafter
mentioned. Principal of and interest, if any, on this Bond
shall be payable at the agency of the Company in the City of
Chicago, Illinois, or, at the option of the holder, at the
agency of the Company in the City of New York.
Reference is made to the further provisions of this
Bond set forth on the reverse hereof. Such further provisions
shall for all purposes have the same effect as though fully
set forth at this place.
This Bond shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon
shall have been signed by The First National Bank of Chicago,
or its successor, as Trustee under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Bond
to be signed in its name, manually or in facsimile, by its
President or one of its Vice Presidents and its corporate seal
to be impressed or imprinted hereon and attested, manually or
in facsimile, by its Secretary or one of its Assistant
Secretaries.
Dated:
IES UTILITIES INC.
By_____________________________
Executive Vice President
ATTEST:
____________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the first mortgage bonds described in
the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_________________________________
Authorized Officer
[FORM OF REVERSE OF BOND]
IES UTILITIES INC.
FIRST MORTGAGE BOND, COLLATERAL SERIES D
Due ______________
This Bond is one of an authorized issue of bonds of
the Company known as its "first mortgage bonds", issued and to
be issued in series under, and all equally and ratably secured
(except as any sinking, amortization, improvement, renewal or
other fund, or any other covenants or agreements, established
in accordance with the provisions of the Indenture hereinafter
mentioned, may afford additional security for the first
mortgage bonds of any particular series) by an Indenture of
Mortgage and Deed of Trust dated as of August 1, 1940,
executed by the Company to The First National Bank of Chicago,
as Trustee, as supplemented by sixty-two Supplemental
Indentures (including a Seventh Supplemental Indenture dated
as of July 1, 1946, a Thirty-second Supplemental Indenture
dated as of September 1, 1966, a Forty-fifth Supplemental
Indenture dated as of November 1, 1976, a Fifty-fifth
Supplemental Indenture dated as of March 1, 1988, a Fifty-
sixth Supplemental Indenture dated as of October 1, 1988, a
Fifty-ninth Supplemental Indenture dated as of October 1,
1993, a Sixtieth Supplemental Indenture dated as of November
1, 1993 and a Sixty-second Supplemental Indenture dated as of
______, 1995) each duly executed by the Company to said
Trustee (said Indenture, as so supplemented, being herein
sometimes referred to as the "Indenture"), to which Indenture
and all indentures supplemental thereto reference is hereby
made for a description of the properties mortgaged and
pledged, the nature and extent of the security, the rights of
the holders of said first mortgage bonds, and of the Trustee
and of the Company in respect of such security, and the terms
and conditions upon which said first mortgage bonds are and
are to be issued and secured. As provided in, and to the
extent permitted by, the Indenture, the rights and obligations
of the Company and of the holders of said first mortgage bonds
may be changed and modified with the consent of the Company by
the affirmative vote of the holders of at least 75% in
principal amount of the first mortgage bonds then outstanding
affected by such change or modification (excluding first
mortgage bonds disqualified from voting by reason of the
Company's interest therein as provided in the Indenture);
provided, however, that without the consent of the registered
owner hereof no such change or modification shall permit the
reduction of the principal or the extension of the maturity of
the principal of this Bond or the reduction of the rate of
interest, if any, hereon or any other modification of the
terms of payment of such principal or interest. As provided
in the Indenture, said first mortgage bonds are issuable in
series which may vary as in the Indenture provided or
permitted. This Bond is one of a series of first mortgage
bonds entitled "First Mortgage Bonds, Collateral Series D, Due
______________".
Any payment or deemed payment by the Company of the
principal of or interest, if any, on the Bonds of Series D
(other than by the application of the proceeds of a payment in
respect of this Bond) shall, to the extent thereof, be deemed
to satisfy and discharge the obligation of the Company, if
any, to make a payment of principal of or interest, if any, on
this Bond which is then due.
This Bond is subject to redemption under certain
circumstances specified in Section 54 of the Indenture by the
application of cash received by the Trustee as the result of
the taking by eminent domain or of the purchase by a public
authority of properties of the Company, as more fully provided
in, and subject to the provisions of, the Indenture, upon at
least 30 days prior notice, given as aforesaid, at a special
redemption price of 100% of the principal amount thereof. In
addition, the Bonds shall be redeemed by the Company no later
than the redemption of the Collateral Trust Securities in a
principal amount equal to the principal amount of Collateral
Trust Securities then being redeemed, and at a redemption
price equal to the redemption price (excluding interest other
than interest on defaulted principal, if any) applicable to
such redemption of Collateral Trust Securities.
If an event of default, as defined in the Indenture,
shall occur, the principal of this Bond may become or be
declared due and payable, in the manner and with the effect
provided in the Indenture.
This Bond is transferable by the registered owner
hereof in person or by attorney authorized in writing at the
agency of the Company in the City of Chicago, Illinois, or, at
the option of the holder, at the agency of the Company in the
City of New York, upon surrender and cancellation of this Bond
and upon any such transfer a new first mortgage bond of the
same series, for the same aggregate principal amount, will be
issued to the transferee in exchange herefor. The Company and
the Trustee may deem and treat the person in whose name this
Bond is registered as the absolute owner hereof, for the
purpose of receiving payment and for all other purposes.
This Bond, alone or with other first mortgage bonds
of the same series, may be exchanged upon surrender thereof to
the Trustee at the agency of the Company in the City of
Chicago, Illinois, or, at the option of the holder, at the
agency of the Company in the City of New York, for one or more
other first mortgage bonds of the same series and of the same
aggregate principal amount but of a different authorized
denomination or denominations, upon payment of a sum
sufficient to reimburse the Company for any stamp tax or other
governmental charge incident thereto, and subject to the terms
and conditions set forth in the Indenture.
No recourse shall be had for the payment of the
principal of or interest, if any, on this Bond, or for any
claim based hereon or otherwise in respect hereof or of the
Indenture or of any indenture supplemental thereto, against
any incorporator, stockholder, director, or officer, as such,
past, present or future, of the Company or of any predecessor
or successor corporation, either directly or through the
Company or any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or by any legal
or equitable proceeding or otherwise howsoever; all such
liability being, by the acceptance hereof and as a part of the
consideration for the issuance hereof, expressly waived and
released by every registered owner hereof, as more fully
provided in the Indenture; provided, however, that nothing
herein or in the Indenture contained shall be taken to prevent
recourse to and the enforcement of the liability, if any, of
any shareholder or any stockholder or subscriber to capital
stock upon or in respect of shares of capital stock not fully
paid up.
[END OF BOND FORM]
SECTION 4. Anything contained in Sections 97 and 98
of the Indenture to the contrary notwithstanding, if less than
all of the outstanding Bonds are to be called for redemption,
the Bonds to be redeemed in whole or in part shall be
designated by the Trustee (within 10 days after receipt from
the Company of notice of its intention to redeem Bonds) by lot
according to such method as the Trustee shall deem proper in
its discretion. For the purpose of any drawing, the Trustee
shall assign a number for each $1,000 principal amount of each
outstanding Bond.
The provisions of Section 97 of the Indenture
relating to notations of partial redemption shall not apply to
the Bonds.
SECTION 5. The recitals contained in this
Supplemental Indenture are made by the Company and not by the
Trustee; and all of the provisions contained in the Original
Indenture, as heretofore supplemented, in respect of the
rights, privileges, immunities, powers, and duties of the
Trustee shall, except as hereinabove modified, be applicable
in respect hereof as fully and with like effect as if set
forth herein in full.
SECTION 6. All the covenants, stipulations,
promises and agreements in this Supplemental Indenture
contained, by or on behalf of the Company, shall bind and
inure to the benefit of its successors and assigns, whether so
expressed or not.
SECTION 7. Nothing in this Supplemental Indenture
expressed or implied is intended or shall be construed to give
to any person other than the Company, the Trustee, and the
holders of the first mortgage bonds any legal or equitable
right, remedy or claim under or in respect of the Indenture or
any covenant, condition or provision therein or in the first
mortgage bonds contained, and all such covenants, conditions,
and provisions are and shall be held to be for the sole and
exclusive benefit of the Company, the Trustee and the holders
of the first mortgage bonds issued under the Indenture.
SECTION 8. All references in the Original Indenture
to the various Sections and Articles thereof shall be deemed
to refer to said Sections and Articles as heretofore amended,
and the Original Indenture shall hereafter be construed and
applied as heretofore amended and supplemented.
SECTION 9. This Supplemental Indenture may be
executed in any number of counterparts, and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts, or as many of them as the
Company and the Trustee shall preserve undestroyed, shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, IES UTILITIES INC. has caused
this Sixty-second Supplemental Indenture to be signed in its
corporate name by its President or a Vice President and its
corporate seal to be hereunto affixed and attested by its
Secretary or an Assistant Secretary, and THE FIRST NATIONAL
BANK OF CHICAGO, in token of its acceptance of the trusts
created hereunder, has caused this Sixty-second Supplemental
Indenture to be signed in its corporate name by one of its
Vice Presidents or Assistant Vice Presidents and its corporate
seal to be hereunto affixed and attested by one of its Trust
Officers, all as of the day and year first above written.
IES UTILITIES INC.
By ________________________
Executive Vice President
(CORPORATE SEAL)
ATTEST:
____________________
Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
By ________________________
Assistant Vice President
(CORPORATE SEAL)
ATTEST:
____________________
Authorized Officer
STATE OF IOWA )
) ss:
COUNTY OF LINN )
On this ____ day of _____, 1995 before me,
_____________, a Notary Public in and for the said County in
the state aforesaid, personally appeared ________________ and
________________________, to me personally known, and to me
known to be Executive Vice President, and Secretary
respectively, of IES UTILITIES INC., one of the corporations
described in and which executed the within and foregoing
instrument, and who, being by me severally duly sworn, each
did say that he the said ____________ is Executive Vice
President, and that he the said ____________ is Secretary of
the said IES UTILITIES INC., a corporation; that the seal
affixed to the within and foregoing instrument is the
corporate seal of the said corporation, and that the said
instrument was signed and sealed on behalf of said corporation
by authority of its Board of Directors; and the said
________________ and _________________ each acknowledged the
execution of said instrument to be the voluntary act and deed
of said corporation by it voluntarily executed.
WITNESS my hand and notarial seal this ___ day of
_________, 1995.
_____________
Notary Public
My Commission expires: ______________
(NOTARIAL SEAL)
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
On this __ day of ____, 1995, before me, _________,
a Notary Public in and for said County in the State aforesaid,
personally appeared ___________ and ____________________, to
me personally known, and to me known to be an
_________________________ and a __________________,
respectively, of THE FIRST NATIONAL BANK OF CHICAGO, one of
the corporations described in and which executed the within
and foregoing instrument, and who, being by me severally duly
sworn, each did say that he the said ____________ is an
Assistant Vice President that the said ________________ is a
_______________ of the said THE FIRST NATIONAL BANK OF
CHICAGO, a corporation; that the seal affixed to the within
and foregoing instrument is the corporate seal of the said
corporation, and that the said instrument was signed and
sealed on behalf of said corporation by authority of its By-
Laws; and the said ______________ and ________________ each
acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily
executed.
WITNESS my hand and notarial seal this _____ day of
___________, 1995.
_____________
Notary Public
My Commission expires: ___________________
(NOTARIAL SEAL)
Exhibit 5
Opinion of Stephen W. Southwick, Vice President, General
Counsel & Secretary as to the legality of the Securities
(including consent of counsel).
August 21, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: IES Utilities Inc. Registration on Form S-3 of Debt
Securities
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary for IES
Utilities Inc. (the "Company") and have acted as counsel for
the Company in connection with the Company's Registration
Statement on Form S-3 filed on or about the date hereof, with
the Securities and Exchange Commission (the "Registration
Statement"), relating to $250,000,000 aggregate principal
amount of its debt securities to be issued in one or more
offerings.
In this regard, I have examined, or caused attorneys under my
general supervision to examine, such corporate records of the
Company and such other instruments, records, certificates and
documents as I have deemed necessary in order to enable me to
render this opinion. On the basis of the foregoing, I am of
the opinion that:
1. The Company has been duly incorporated and is
legally existing as a corporation under the laws of
the State of Iowa and has the power and authority to
issue debt securities, including collateral trust
bonds.
2. The debt securities will be valid, legally binding
obligations of the Company.
Securities and Exchange Commission
August 21, 1995
Page -2-
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of my name under
the heading "Legal Matters" in the Prospectus included in the
Registration Statement.
Very truly yours,
/s/ Stephen W. Southwick
Stephen W. Southwick
Vice President, General Counsel
& Secretary
Exhibit 23(a)
Consent of Arthur Andersen LLP.
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement 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,
August 29, 1995
Exhibit 23(b)
Consent of Stephen W. Southwick, Vice President, General
Counsel & Secretary (contained in Exhibit 5).
Exhibit 24
Power of Attorney (included on p. II-4 of the
Registration Statement).
Exhibit 25
Form T-1 Statement of Eligibility under The Trust
Indenture Act of 1939 of The First National Bank of Chicago,
as Trustee under The Mortgage.
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)
Collateral Trust Bonds
(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
30th day of June, 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
June 30, 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
A copy of the latest report of conditions of the trustee
published pursuant to law or the requirements of its supervising
or examining authority.
Legal Title of Bank: The First National Bank of Chicago Call Date: 3/31/95
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for March 31, 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
<TABLE>
<CAPTION>
Dollar Amounts in C400 <-
Thousands RCFD BIL MIL THOU
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository
institutions (from Schedule RC-A):
a. Noninterest-bearing balances and
currency and coin(1) 0081 2,948,128 1.a.
b. Interest-bearing balances(2) 0071 8,482,108 1.b.
2. Securities
a. Held-to-maturity securities(from
Schedule RC-B, column A) 1754 167,911 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column D) 1773 540,011 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 2,508,883 3.a.
b. Securities purchased under
agreements to resell 0277 1,422,695 3.b.
4. Loans and lease financing
receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C) RCFD 2122 16,238,310 4.a.
b. LESS: Allowance for loan and lease
losses RCFD 3123 358,207 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 15,880,103 4.d.
5. Assets held in trading accounts 3545 13,257,798 5.
6. Premises and fixed assets (including
capitalized leases) 2145 516,827 6.
7. Other real estate owned (from
Schedule RC-M) 2150 13,166 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M) 2130 10,363 8.
9. Customers' liability to this bank on
acceptances outstanding 2155 463,961 9.
10.Intangible assets (from Schedule RC-M) 2143 119,715 10.
11.Other assets (from Schedule RC-F) 2160 1,346,941 11.
12.Total assets (sum of items 1 through 11) 2170 47,678,610 12.
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 3/31/95
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices
(sum of totals of columns
A and C from Schedule
RC-E, part 1) RCON 2200 14,675,401 13.a.
(1) Noninterest-bearing(1) RCON 6631 5,498,690 13.a.(1)
(2) Interest-bearing RCON 6636 9,176,711 13.a.(2)
b. In foreign offices, Edge and
Agreement subsidiaries, and
IBFs (from Schedule RC-E,
part II) RCFN 2200 11,809,645 13.b.
(1) Noninterest bearing RCFN 6631 304,669 13.b.(1)
(2) Interest-bearing RCFN 6636 11,504,976 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 2,072,830 14.a.
b. Securities sold under
agreements to repurchase RCFD 0279 1,484,164 14.b.
15. a. Demand notes issued to the
U.S. Treasury RCON 2840 103,138 15.a.
b. Trading Liabilities RCFD 3548 9,101,186 15.b.
16. Other borrowed money:
a. With original maturity
of one year or less RCFD 2332 2,307,860 16.a.
b. With original maturity
of more than one year RCFD 2333 506,476 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 463,961 18.
19. Subordinated notes and debentures RCFD 3200 1,225,000 19.
20. Other liabilities (from Schedule
RC-G) RCFD 2930 699,375 20.
21. Total liabilities (sum of items
13 through 20) RCFD 2948 44,727,144 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 2,304,657 25.
26. a. Undivided profits and
capital reserves RCFD 3632 447,916 26.a.
b. Net unrealized holding
gains (losses) on
available-for-sale securities RCFD 8434 ( 2,165) 26.b.
27. Cumulative foreign currency
translation adjustments RCFD 3284 200 27.
28. Total equity capital
(sum of items 23 through 27) RCFD 3210 2,951,466 28.
29. Total liabilities, limited-life
preferred stock, and equity
capital (sum of items 21, 22, and 28) RCFD 3300 47,678,610 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
RCFD 6724 N/A
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 M.1.
auditors as of any date during 1993.......................
1 = Independent audit of the bank 4 = Directors' examination of the
conducted in accordance 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 authority)
report on the bank 5 = Review of the bank's financial
2 = Independent audit of the bank's statements by external auditors
parent holding company conducted 6 = Compilation of the bank's
in accordance with generally accepted financial statements by
auditing standards by a certified external auditors
public accounting firm which submits 7 = Other audit procedures
a report on the consolidated holding (excluding tax preparation
company (but not on the bank work)
separately) 8 = No external audit work
3 = Directors' examination of the bank
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.
Exhibit 26
Form of Letter to Prospective Purchasers regarding the
Securities.
[Letterhead of IES]
[Date]
To:
Re: IES Utilities Inc.
Proposed Collateral Trust Bond Issue
Ladies/Gentlemen:
IES Utilities Inc. plans to commence an offering of
$250,000,000 in aggregate principal amount of its Collateral
Trust Bonds (the "Bonds") during the week of _______, 1995. A
Registration on Form S-3 relating to the Bonds was filed with
the SEC on _________, 1995. It is expected bids will be
solicited on either _________ or _________. The purpose of
this letter is to extend to you an invitation to bid on this
issue and to define the bidding process.
Proposals are being solicited from _______ investment banking
firms: ______________________________________________________
______________________________________________________________
____________________________________. I will initiate the
bidding process by contacting each of you by phone at
approximately 4:00 p.m. EDT the day prior to the bid. Your
completed bid sheet should be returned to me by facsimile at
10:00 a.m. EDT the following day. (Appropriate FAX numbers
will be provided on the bid sheet.)
IES Utilities Inc. will select an underwriter based on the
economics of the proposals as well as any other criteria it
deems appropriate. This selection will be made within 15
minutes of receipt of the bids with pricing and execution of
the underwriting agreement expected to be completed the same
day. Closing will occur three business days after pricing.
All bids are expected to be made in good faith with final
pricing consistent with the selected offer. You should assume
IES Utilities will be paid in same day funds at closing and
that Dorsey & Whitney's fees will be paid by underwriters.
The Company does not plan to include a rating out in the
underwriting agreement. Should your proposal be contingent on
a rating out, please indicate so in your bid.
Under Section 34.2 of the Rules of the Federal Energy
Regulatory Commission, we are required to notify you that no
bid for securities shall be invited or accepted from any
person who:
i) prior to the submission of bids has performed any
service for any fee or compensation in connection with
the proposed issuance of securities;
ii) violates Section 305(a) of the Federal Power Act
with respect to this bid.
I am enclosing some materials which should be helpful in your
due diligence. Included are the IES Utilities 1994 Form 10-K,
the two most recent IES Utilities Form 10-Q's, the ______ most
recent Form 8-K's dated ________________, the Proxy Statement
filed with the SEC on _______, the Registration Statement, the
form of underwriting agreement and our new Indenture relating
to the Bonds. Also enclosed is a Prospective Purchasers
Questionnaire. Please complete this form and return it to me.
A due diligence conference call is currently scheduled for
4:00 p.m. EDT on ____________. Gary Tygesson of Dorsey &
Whitney will be in contact with you to verify this.
Attached is a summary of the proposed offering as well as a
distribution list and the proposed bid form. If you have any
questions, please feel free to call either _____________ or
____________.
Very truly yours,
