SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 19, 1996
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IES UTILITIES INC.
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(Exact name of registrant as specified in its charter)
Iowa 0-4117-1 42-0331370
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(State or other (Commission (I.R.S. Employer
jurisdiction of File No.) Identification No.)
incorporation)
IES Tower, Cedar Rapids, Iowa 52401
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(Address of principal executive offices, including zip code)
(319) 398-4411
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(Registrant's telephone number)
<PAGE>
Item 5. Other Events.
IES Utilities Inc. hereby files the below listed documents as Exhibits to
its Registration Statement on Form S-3, as amended, Registration No. 33-62259,
amending such Exhibits previously filed.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
1(a) Underwriting Agreement relating to Collateral Trust Bonds ("Bonds").
4(c)(i) Fourth Supplemental Indenture establishing the Series of Bonds
(including form of Bonds).
4(c)(ii) Chairman's Certificate.
4(f) Sixty-second Supplemental Indenture providing for the issuance of
Class "A" Bonds under the 1940 Indenture (including form of Class
"A" Bonds).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IES UTILITIES INC.
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(Registrant)
By /s/ Stephen W. Southwick
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(Signature)
Stephen W. Southwick
Vice President, General Counsel &
Secretary
Date: September 27, 1996
<PAGE>
EXHIBIT INDEX
1(a) Underwriting Agreement relating to Collateral Trust Bonds ("Bonds").
4(c)(i) Fourth Supplemental Indenture establishing the Series of Bonds
(including form of Bonds).
4(c)(ii) Chairman's Certificate.
4(f) Sixty-second Supplemental Indenture providing for the issuance of
Class "A" Bonds under the 1940 Indenture (including form of Class
"A" Bonds).
<PAGE>
EXHIBIT 1(a)
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 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.
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 supplemented by three supplemental indentures and as it
will be further 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 and the Mortgage are more
fully described in the Prospectus hereinafter referred to.
SECTION 4. Representations and Warranties of the Company.
The Company represents and warrants that:
(a) It has filed with the Securities and Exchange
Commission ("Commission") a registration statement (File No.
33-62259) (the "Registration Statement") for the registration
of $250,000,000 principal amount of the Company's debt
securities under the Securities Act. The Registration
Statement has become effective and $200,000,000 principal
amount of the debt securities remain unsold. No stop order
suspending the effectiveness of the Registration Statement has
been issued, and no proceedings for that purpose have been
initiated or threatened by the Commission. The prospectus
(including the supplement thereto) forming a part of the
Registration Statement, at that time pursuant to Item 12 of
Form S-3, is hereinafter referred to as the "Basic
Prospectus." In the event that the Basic Prospectus shall
have been amended, revised, or supplemented (but excluding any
amendments, revisions, or supplements to the Basic Prospectus
relating solely to the offering of debt securities other than
the 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 debt
securities 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 debt securities 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 Dorsey & Whitney LLP ("Counsel for the
Underwriters"), or any such amendment, supplement, or document
to which said Counsel shall reasonably object on legal grounds
in writing. For purposes of this Underwriting Agreement, any
document filed with the Commission after the effectiveness of
this Underwriting Agreement and incorporated by reference in
the Prospectus (except documents incorporated by reference
relating solely to the offering of debt securities other than
the 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 date of its effectiveness, the
Registration Statement and any post-effective amendment
thereto (but excluding in each case any post-effective
amendment relating solely to the offering of debt securities
other than the 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 subsection (c) shall not apply to
statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by or through the Representative on behalf of any Underwriter
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, and in good standing under the laws of the
State of Iowa and has full power and authority (corporate and
other) under such laws to own its properties and to conduct
its business as described in the Registration Statement and
the Prospectus; and the Company does not own or lease
substantial properties or conduct its business in any state
other than the State of Iowa;
(f) The 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 in each case as the same may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of
good faith and fair dealing; and the 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 Sixty-second Supplemental Indenture to the 1940
Indenture will be substantially in the form filed as an
exhibit to the Registration Statement; the Sixty-second
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 mortgages 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, including the Agreement and Plan of Merger by and among
WPL Holdings, Inc., IES Industries Inc., and Interstate Power
Company, dated as of November 10, 1995, as amended.
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 offering 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 six 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 subsection (h) of Section 7.
In the computation of any period of twenty-four (24) hours
referred to in this Section 6, there shall be excluded a period of
twenty-four (24) hours in respect of each Saturday, Sunday, or legal
holiday which would otherwise be included in such period of time.
SECTION 7. Covenants of the Company. The Company agrees with
each of the Underwriters:
(a) To deliver to the Representative a signed copy
of the Registration Statement as originally filed and of all
amendments thereto relating to the 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 series
having a maturity or maturities different from the date of
maturity of the Bonds) 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 authorization by the Federal Energy
Regulatory Commission of the issuance and sale of the Bonds
shall be in full force and effect;
(d) At the Closing Date, the Representative shall
have received from Stephen W. Southwick, Esq., counsel for IES
Industries Inc., Winthrop, Stimson, Putnam & Roberts, counsel
to the Company, and Dorsey & Whitney LLP, counsel for the
Underwriters, opinions in substantially the form and substance
set forth in Exhibits A, B, and C hereto, respectively, (i)
with such changes therein as may be agreed upon by the Company
and the Representative, with the approval of counsel for the
Underwriters, and (ii) if the Prospectus relating to the 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 D hereto.
(f) At the Closing Date, the Representative shall
have received a certificate of the Company dated the Closing
Date and signed by a Vice President of the Company, to the
effect that (i) the Federal Energy Regulatory Commission has
authorized the issuance and sale of the Bonds and such
authorization is in full force and effect, to the best
knowledge of the signer; (ii) since the most recent date as of
which information is given in the Prospectus, as it may have
been amended or supplemented, there has not been any material
adverse change in the business, property, or financial
condition of the Company and there has not been any material
transaction entered into by the Company, other than
transactions in the ordinary course of business, in each case
other than as referred to in, or contemplated by, the
Prospectus, as it may have been amended or supplemented; and
(iii) to the best knowledge of the signer, the representations
and warranties of the Company in this Underwriting Agreement
are true and correct in all material respects at and as of the
Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(g) All legal proceedings to be taken in connection
with the issuance and sale of the 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
subsection (h) of Section 7.
SECTION 9. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the following
conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to and in compliance with Rule 424.
(b) No stop order suspending the effectiveness of
the Registration Statement shall be in effect at or prior to
the Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the
Closing Date.
(c) The authorization by the Federal Energy
Regulatory Commission of the issuance and sale of the Bonds
shall be in full force and effect.
In case any of the conditions specified in this Section 9
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to the Representative.
Any such termination shall be without liability of any party to any
other party, except as otherwise provided in subsection (h) of Section
7.
SECTION 10. Indemnification.
(a) The Company shall indemnify, defend, and hold
harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the Securities
Act from and against any and all losses, claims, damages, or
liabilities, joint or several, to which they or any of them
may become subject under the Securities Act or any other
statute or common law. The Company shall reimburse each such
Underwriter and controlling person for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them, such reimbursement
to be made as such expenses are incurred by them, in
connection with investigating any such losses, claims,
damages, or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages, liabilities,
expenses, or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in a preliminary prospectus (if used prior to the
initial effective date of the Registration Statement), or in
the Basic Prospectus (if used prior to the date that the
Prospectus is filed with the Commission pursuant to Rule 424)
or in the Registration Statement or the Prospectus, as amended
or supplemented (if any amendments or supplements thereto
shall have been made), or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in
this paragraph shall not apply to any such losses, claims,
damages, liabilities, expenses, or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in
conformity with written information furnished to the Company
by or through the Representative on behalf of any Underwriter
expressly for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based
upon, statements in or omissions from that part of the
Registration Statement which shall constitute the statement of
eligibility under the Trust Indenture Act of the Trustee under
the Indenture; and provided further, that the indemnity
agreement contained in this paragraph shall not inure to the
benefit of any Underwriter or of any person controlling any
Underwriter on account of any such losses, claims, damages,
liabilities, expenses, or actions arising from the sale of the
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 debt securities other than the Bonds
and of any document which becomes incorporated by reference
pursuant to Item 12 of Form S-3 more than 3 business days
prior to the date hereof), and (ii) as soon as available after
such written confirmation a copy of any amendment or
supplement to the Prospectus (exclusive for this purpose of
any document incorporated by reference pursuant to Item 12 of
Form S-3) which the Company shall thereafter furnish, pursuant
to subsection (d) of Section 7 hereof, relating to an event
occurring prior to the payment for and delivery to such person
of the 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 to either thereof. The indemnity agreement of the
respective Underwriters contained in this paragraph shall
remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Company, its
directors or officers, or any such controlling person, and
shall survive the delivery of the 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 if counsel for the indemnifying
party reasonably concludes that there may be defenses
available to the indemnified party 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 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 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 subsection (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, S.E., Cedar Rapids, Iowa 52401 Attention: Treasurer.
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), 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
CITICORP SECURITIES, INC.
By:
Name:
Title:
Address of Representative(s):
399 Park Avenue
New York, NY 10043
The foregoing Underwriting Agreement is hereby
accepted as of the date set forth below:
IES UTILITIES INC.
By:
Name: Dennis B. Vass
Title: Treasurer
Date: September 19, 1996
SCHEDULE I
Underwriting Agreement dated September 19, 1996
Registration Statement (No. 33-62259)
Securities:
Designation: Collateral Trust Bonds 7 1/4% Series Due 2006
Principal Amount: $60,000,000
Date of Maturity: October 1, 2006
Interest Rate: 7.25%
Commencement of Interest Accrual: Date of Issuance
Purchase Price: 99.403%
Public Offering Price: 99.678%
Closing Date: September 27, 1996
SCHEDULE II
Principal Amount
Name of Underwriter of Bonds
Citicorp Securities, Inc. $60,000,000
Total $60,000,000
EXHIBIT A
[Letterhead of IES Industries Inc.]
[Date]
Re: $60,000,000 Collateral Trust Bonds 7 1/4% Series Due 2006
Ladies and Gentlemen:
I am counsel for IES Industries Inc., the parent company of
IES Utilities Inc. (the "Company") and have participated in the issuance
and sale by the Company to you of $60,000,000 aggregate principal amount
of Collateral Trust Bonds 7 1/4% Series Due 2006 (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 supplemented by the Fourth Supplemental Indenture
dated as of September 1, 1996 (the "Supplemental Indenture") (said
Mortgage of Indenture and Deed of Trust as so supplemented is herein
referred to as the "Mortgage") pursuant to an Underwriting Agreement
dated as of September 19, 1996 between you and the Company (the
"Underwriting Agreement").
In this connection, I have examined, among other things, the
following:
(a) the Registration Statement and the Prospectus (such terms
having the same meanings herein as in the Underwriting Agreement);
(b) the Articles of Incorporation of the Company and all
amendments thereto, as certified by the Secretary of State of the
State of Iowa;
(c) a Certificate of the Secretary of State or other
appropriate state official certifying as to the good standing and
qualification of the Company to transact business in the State of
Iowa;
(d) the By-laws of the Company, certified by the Secretary of
the Company;
(e) the 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 Sixty-second Supplemental Indenture, dated as
of 1993 (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) the Company's Indenture of Mortgage and Deed of Trust
dated as of February 1, 1923, to The First National Bank of
Chicago, as trustee, as amended and supplemented ("ISU 1923
Indenture");
(h) certified copies of the Resolutions of the Board of
Directors of the Company dated _________, including the Addendum to
the Resolution of the Board setting forth the terms and conditions
of the Bonds approved by the ___________ dated ________, pertaining
to the authorization and sale of the Bonds and related matters;
(i) 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;
(j) copies of franchises of the Company and the proceedings
under which they were granted;
(k) certified copies of the Officer's Certificate of the
Company dated _________, 199_, pertaining to the authorization and
sale of the Bonds and related matters;
(l) the Application filed by the Company with the Federal
Energy Regulatory Commission seeking, among other things, authority
for and approval of the issuance and sale of Bonds and a copy of
the Letter of Authority issued by the Chief Accountant of such
Commission, dated __________, 1995, authorizing and approving the
issuance and sale of the Bonds;
(m) counterparts of the Underwriting Agreement executed by
you and the Company; and
(n) other information, documents, and material which I deem
sufficient along with the foregoing to support this opinion.
In addition, in connection with this opinion, I have reviewed
various orders and certificates of, and members of the legal staff of
IES Industries Inc. had telephone conversations with, public officials.
I have not examined the Bonds, except a specimen thereof.
Subject to the foregoing and to the further exceptions and
qualifications set forth below and having regard to all legal and
factual considerations which I deem relevant and based upon all such
other information and documents furnished to or obtained by me as I
believe necessary to enable me to render this opinion, including
certificates of public officials, I am of the opinion that:
1. The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Iowa, with full power and authority (corporate and other) to
own its property and to conduct its business as presently being
conducted all within the State of Iowa.
2. The Bonds and the Mortgage, the Class "A" Bonds, the 1940
Indenture and the ISU 1923 Indenture (as such term is defined in the
Mortgage) 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, enforceable
against the Company in accordance with their terms except as the same
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, by general
principles of equity (regardless of whether or not enforceability is
considered in a proceeding in equity or at law).
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, enforceable against the
Company in accordance with their terms except as the same may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting enforcement of
creditors' rights generally, by general principles of equity (regardless
of whether or not enforceability is considered in a proceeding in equity
or at law).
6. The Mortgage, the 1940 Indenture, and the ISU 1923
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 against the Company in accordance with their
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 my opinion, make inadequate the remedies necessary for the
realization of the benefits of such security, and except as the same may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, by general
principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law) and by an implied covenant of good
faith and fair dealing.
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 By-laws
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, subject only
to (a) Permitted Liens (as defined in the Mortgage), (b) the prior lien
of the 1940 Indenture on certain properties of the Company, (c) the
prior lien of the ISU 1923 Indenture on certain other properties of the
Company 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; and the Company possesses
the power of eminent domain with respect to its present public utility
operations.
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 on certain properties of the Company, (c) the prior
lien of the ISU 1923 Indenture on certain other properties of the
Company 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 on certain properties of the Company, (c) the
prior lien of the ISU 1923 Indenture on certain other properties of the
Company, (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 and will
constitute 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 until the Merger of Iowa Southern
Utilities Company into the Company on December 31, 1993, and, on all
property thereafter acquired by the Company which is appurtenant to the
property owned by the Company immediately prior to such merger, subject
only to (x) Permitted Encumbrances (as defined therein), (y) minor
restrictions, exceptions and reservations in conveyance and defects
which are of a nature ordinarily found in property of similar character
and magnitude, and (z) any liens, charges or encumbrances existing or
placed thereon at the time of acquisition.
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 Liens 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 and will
constitute 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 until the Merger of Iowa
Southern Utilities Company into the Company on December 31, 1993, and,
on all property thereafter acquired by the Company which is appurtenant
to the property owned by Iowa Southern Utilities Company immediately
prior to such merger, subject only to (x) Permitted Liens (as defined
therein), (y) minor restrictions, exceptions and reservations in
conveyance and defects which are of a nature ordinarily found in
property of similar character and magnitude, and (z) any liens, charges
or encumbrances existing or placed thereon at the time of acquisition.
12. 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, subject only to Permitted Encumbrances (as defined
therein) and to any liens, charges or encumbrances existing or placed
thereon at the time of acquisition.
13. The Mortgage, the 1940 Indenture, and the ISU 1923
Indenture have been duly filed and recorded in all jurisdictions in
which it is necessary for the Mortgage, the 1940 Indenture, and the 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 (except for after-acquired
property) covered thereby.
14. 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.
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.
18. 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.
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. 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, the 1940 Indenture, or the ISU 1923
Indenture) who seek to acquire, possess or use nuclear production
facilities.
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.
$60,000,00 Collateral Trust Bonds 7 1/4% Series Due 2006
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
September 19, 1996 ("Underwriting Agreement") between the Company and
you, of $60,000,000 in principal amount of Collateral Trust Bonds 7 1/4%
Series Due 2006 (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 supplemented by
the Fourth Supplemental Indenture, dated as of September 1, 1996. 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 opinion of even
date herewith addressed to you by Stephen W. Southwick, Counsel for IES
Industries Inc., as to the matters covered in such opinion relating to
Iowa law. We have reviewed said opinion and believe that it is
satisfactory and that you and we are justified in relying thereon.
We also examined such other documents and questions of law and
satisfied ourselves as to such other matters as we have deemed necessary
in order to enable us to express this opinion. We have not examined and
are expressing no opinion or belief as to matters relating to the
incorporation of the Company, 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 shall have the same meaning 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 against the Company 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, except as limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting enforcement of
creditors' rights generally, by general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair dealing; and the
Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act").
2. The 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 Indenture enforceable against the
Company in accordance with their terms except as the same may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting enforcement of
creditors' rights generally, by general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair dealing.
3. The summaries of the terms of the 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 By-laws
of the Company, the Mortgage, the IELP 1940 Mortgage, the ISU 1923
Mortgage, or to the best of our knowledge, any other indenture,
mortgage, deed of trust or other agreement or instrument to which the
Company is a party or by which it or any of its properties are bound.
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, the IELP 1940
Mortgage, and the ISU 1923 Mortgage) who seek to acquire, possess or use
nuclear production facilities.
As used in this opinion, the phrase "to the best of our
knowledge" 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.
The opinion set forth above is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement and the
transactions contemplated thereunder and may not be quoted or furnished
to, or relied upon in any manner by, any other person or utilized for
any other purpose without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
EXHIBIT C
[Letterhead of Dorsey & Whitney]
[Date]
Re: IES Utilities Inc.
$60,000,000 Collateral Trust Bonds 7 1/4% Series Due 2006
Ladies and Gentlemen:
We have acted as your counsel in connection with the issuance
and sale by IES Utilities, Inc. (the "Company") to you pursuant to the
Underwriting Agreement dated September 19, 1996 ("Underwriting
Agreement") between the Company and you, of $60,000,000 in principal
amount of Collateral Trust Bonds 7 1/4% Series (the "Bonds"), issued under
the Company's Indenture, dated as of September 1, 1993, to The First
National Bank of Chicago, as Trustee (the "Trustee"), as supplemented by
the Fourth Supplemental Indenture, dated as of September 1, 1996. Said
Indenture of Mortgage and Deed of Trust as so supplemented is herein
referred to as the "Mortgage"). This opinion is being delivered
pursuant to subsection (d) of Section 8 of the Underwriting Agreement.
We have examined such documents and reviewed such questions of
law as we have considered necessary and appropriate for the purposes of
this opinion. [Assumptions to be stated here, including authenticity,
signatures, conformity, legal capacity, due incorporation, valid
existence, good standing, power and authority, mutuality of obligations,
title to real properties, adequacy of interest in other property, UCC
matters, due filing and recording, adequacy of property descriptions and
accuracy of references.] [Reliance as to factual and other matters to be
stated here.]
Based upon the foregoing, we are of the opinion that:
1. the Company is a validly organized and existing
corporation in good standing under the laws of the State of Iowa;
2. the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
3. the 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 against the Company in accordance
with its terms, except as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, by general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and by
an implied covenant of good faith and fair dealing; and the Indenture
has been duly qualified under the Trust Indenture Act of 1939, as
amended ("Trust Indenture Act");
4. the 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 the same may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, by general
principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law) and by an implied covenant of good
faith and fair dealing;
5. the Bonds, the Mortgage, the Class "A" Bonds, the IELP
1940 Indenture and the ISU 1923 Indenture (as such terms are defined in
the Mortgage and the Indenture conform as to legal matters with the
statements concerning them made in the Prospectus, and such statements
accurately set forth the matters respecting the 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
or as to the Form T-1 filed as an exhibit to the Registration
Statement); and
9. the Company is a subsidiary of IES Industries Inc., an
Iowa corporation, and both are exempt from regulation under the Public
Utility Holding Company Act of 1935, as amended, except under Section
9(a)(2) thereof.
In the course of the preparation of the Registration Statement
and the Prospectus, we have considered the information set forth therein
in light of the matters required to be set forth therein, and we have
participated in conferences with officers and representatives of the
Company, including its counsel and independent public accountants,
during the course of which the contents of the Registration Statement
and the Prospectus and related matters were discussed. We have not
independently checked the accuracy or completeness of, or otherwise
verified, and accordingly are not passing upon, and do not assume
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
(except as expressly stated in paragraph 5 of this letter); and we have
relied as to materiality, to a large extent, upon the judgment of
officers and representatives of the Company. However, as a result of
such consideration and participation, nothing has come to our attention
which causes us to believe that the Registration Statement at the time
it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (except that we
express no belief as to the financial statements and financial and
statistical data contained therein), or that the Prospectus, at the time
first filed with the SEC pursuant to Rule 424 under the Securities Act
and at the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except that we express no
belief as to the financial statements and financial and statistical data
contained therein). We do not express any opinion as to the statements
contained in the Form T-1 filed as an exhibit to the Registration
Statement.
The opinion set forth above is solely for the benefit of the
addressees of this letter and may not be relied upon in any manner by,
nor may copies be delivered to, any other person without our prior
written consent.
Very truly yours,
DORSEY & WHITNEY
EXHIBIT D
Pursuant to subsection (e) of Section 8 of the Underwriting
Agreement, Arthur Andersen LLP shall furnish a letter to the
Representative to the effect that:
(1) They are independent certified public accountants with respect
to the Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder;
(2) In their opinion, the financial statements and schedules
audited by them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations thereunder;
(3) On the basis of performing the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim
Financial Information, on the latest available unaudited financial
statements included or incorporated by reference in the Registration
Statement, a reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the Board of
Directors, the Executive Committee thereof and the stockholders of the
Company, respectively, since the close of the most recent audited fiscal
year to a specified date not more than five business days prior to the
Closing Date, and inquiries of officials of the Company who have
responsibility for the respective company's financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an audit made in accordance with generally accepted auditing
standards and that they would not necessarily reveal matters of
significance with respect to the comments made in such letter, and,
accordingly, that Arthur Andersen LLP makes no representation as to the
sufficiency of such procedures for the several Underwriters' purposes),
nothing has come to their attention which caused them to believe that
(a) the unaudited financial statements included or
incorporated by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the related published rules and
regulations thereunder;
(b) the audited and unaudited selected financial information
and supplemental financial information and ratios of earnings to fixed
charges included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
disclosure requirements of Regulation S-K promulgated under the
Securities Act;
(c) any material modifications should be made to said
unaudited financial statements for them to be in conformity with
generally accepted accounting principles;
(d) for the period from January 1, 1996 to the date of the
latest available unaudited financial statements of the Company, there
was any decrease in operating revenues, operating income or net income
as compared with the corresponding period in the preceding year, except
in all instances for decreases which the Prospectus discloses have
occurred or may occur or except as set forth in such letter; and
(e) at a specified date not more than five days prior to the
Closing Date there was any change in the capital stock or long-term debt
of the Company, in each case as compared with amounts shown in the most
recent balance sheet incorporated by reference in the Prospectus, except
in all instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for the
repayment or redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or purchase of
preferred stock for sinking fund purposes, for any increases in long-
term debt in respect of previously issued pollution control revenue
bonds, or for changes or decreases as set forth in such letter,
identifying the same and specifying the amount thereof.
(4) In addition to the audit referred to in their reports included
or incorporated by reference in the Prospectus and the inspection of
minute books, inquiries and other limited procedures referred to in
paragraph 3 above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information including certain pro forma information specified by the
Representative which are derived from the general accounting records of
the Company which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representative
or in documents incorporated by reference in the Prospectus specified by
the Representative and agreed to by the Company, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and have found them to be in
agreement.
<PAGE>
EXHIBIT 4(c)(i)
________________________________________________________________
________________________________________________________________
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 September 1, 1996
______________
TO
INDENTURE OF MORTGAGE and DEED OF TRUST
Dated as of September 1, 1993
________________________________________________________________
FOURTH SUPPLEMENTAL INDENTURE, dated as of September 1, 1996
(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, 7 1/4% Series Due 2006 (the "Collateral Trust Bonds of the
7 1/4% 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 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 created in the Fourth
Supplemental Indenture 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 7 1/4% SERIES
SECTION 1. The Company hereby creates a new series of Bonds
to be known as "Collateral Trust Bonds of the 7 1/4% Series."
The Collateral Trust Bonds of the 7 1/4% 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
September 27, 1996. The Collateral Trust Bonds of the 7 1/4% Series shall
mature October 1, 2006, and shall bear interest at the rate of 7 1/4% per
annum, payable semi-annually on the 1st day of April and the 1st day of
October in each year, commencing on April 1, 1997. The person in whose
name any of the Collateral Trust Bonds of the 7 1/4% 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 7 1/4% 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 March 15 or September 15, as
the case may be, next preceding the semi-annual interest payment date,
or, if such March 15 or September 15 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 7 1/4% 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.
Subject to the terms and conditions set forth in the Indenture, the
Collateral Trust Bonds of the 7 1/4% Series may be exchanged for one or
more new Collateral Trust Bonds of the 7 1/4% Series or other authorized
denominations, for the same aggregate principal amount, upon surrender
thereof, 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.
Collateral Trust Bonds of the 7 1/4% 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 7 1/4% 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, 7 1/4% SERIES DUE 2006.
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 1st day of October, 2006, 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 September 27, 1996, payable semi-annually, on the 1st day
of April and October in each year, at the rate of 7 1/4% 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 1st day of April or October will, subject
to certain exceptions provided in the Fourth Supplemental Indenture
dated as of September 1, 1996, be paid to the person in whose name this
Bond is registered at the close of business on the immediately preceding
March 15th or September 15th, as the case may be. Except as otherwise
provided in the Indenture, any such interest not paid or duly provided
for shall forthwith cease to be payable to such person, and shall either
be paid to the person whose name this Bond is registered at the close of
business on a Special Record Date for the payment of such interest to be
fixed by the Trustee, notice of which shall be given to holders of Bonds
of this Series not less than 10 days prior to such Special Record Date,
or be paid at any time in any lawful manner not inconsistent with the
requirements of any securities exchange on which the Bonds of this
Series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided for in said Indenture. 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 September 1, 1996.
THE FIRST NATIONAL BANK
OF CHICAGO, Trustee
By_____________________________
Authorized Officer
[FORM OF REVERSE OF BOND]
This Collateral Trust Bond is one of a duly authorized issue
of Collateral Trust Bonds of the Company in an aggregate principal
amount of up to $60,000,000 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
September 1, 1996), 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 7 1/4% Series
is one of a series designated as the "Collateral Trust Bonds of the 7 1/4%
Series Due 2006" (the "Collateral Trust Bonds of the 7 1/4% Series") of the
Company, in an aggregate principal amount of up to $60,000,000, issued
under and secured by the Indenture and described in the Fourth
Supplemental Indenture thereto dated as of September 1, 1996 (the
"Fourth Supplemental Indenture") between the Company and the Trustee.
The Collateral Trust Bonds of the 7 1/4% Series will not be
redeemable prior to their maturity; provided, however, that such Bonds
may be redeemed in whole at any time or in part from time to time, up on
at least 30 days notice, at the redemption price equal to 100% of the
principal amount thereof, plus accrued interest to the date of
redemption, through application of cash received by the Trustee as a
result of properties of the Company being taken by eminent domain or
being sold to an entity possessing the power of eminent domain.
In case an Event of Default, as defined in the Indenture,
shall occur, the principal of all the Collateral Trust Bonds of the 7 1/4%
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 Bonds 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
SECTION 1. Pursuant to the terms of Section 401 of the
Indenture, the Company hereby exercises the right to obtain the
authentication of $60,000,000 principal amount of Collateral Trust
Bonds.
SECTION 2. Such Collateral Trust Bonds of the 7 1/4% 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 7 1/4% Series will not be
redeemable prior to their maturity; provided, however, that such Bonds
may be redeemed in whole at any time or in part from time to time, up on
at least 30 days notice, at the redemption price equal to 100% of the
principal amount thereof, plus accrued interest to the date of
redemption, through application of cash received by the Trustee as a
result of properties of the Company being taken by eminent domain or
being sold to an entity possessing the power of eminent domain.
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 /s/ James E. Hoffman
James E. Hoffman
Executive Vice President
ATTEST:
/s/ Stephen W. Southwick
Stephen W. Southwick
Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
By
John R. Prendiville
Vice President
ATTEST:
Georgia E. Tsirbas
Assistant Vice President
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 __________________________
James E. Hoffman
Executive Vice President
ATTEST:
____________________
Stephen W. Southwick
Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
ATTEST:
/s/ Georgia E. Tsirbas
Georgia E. Tsirbas
Assistant Vice President
STATE OF IOWA )
) ss:
COUNTY OF LINN )
On the 19th day of September, 1996, before me personally came
James E. Hoffman, to me known, who, being by me duly sworn, did depose
and say that he is the Executive Vice President 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.
/s/ Marcia K. Young
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On the 19th day of September, 1996, before me personally came
John R. Prendiville to me known, who, being by me duly sworn, did depose
and say that he is a Vice President 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.
/s/ Mietka T. Collins
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 degree 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 degree 581/2`E, 290.4 ft. along said right of way line; thence
N 02 degree 42'W, 55.1 ft. along said right of way line; thence
S37 degree 471/2`E, 126.6 ft.; thence S00 degree 011/2` W, 75.0
ft. thence S29 degree 151/2`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
(l) Story County, filed 1-8-96, Book 96, Page 229
That part of the Southeast Quarter (SE 1/4) of Section 14, Township 85
North, Range 23 West of the 5th P.M., Story County, Iowa, lying South of
the former Chicago and Northwestern R.R. Co. right of way, more
particularly described as follows: Commencing at the Southeast Corner
of said Section 14; thence North 1 degree 25'51" East along the East
line of said Southeast Quarter (SE 1/4) of Section 14, a distance of
623.33 feet to the point of beginning; thence North 90 degree 00'00"
West parallel to the South line of said Southeast Quarter (SE 1/4),
a distance of 328.16 feet; thence North 1 degree 25'51" East parallel
to the East line of said Southeast Quarter (SE 1/4), a distance of
313.53 feet to the South right of way line of the former Chicago and
Northwestern R.R.; thence South 88 degree 52'11" East along the South
right of way line, a distance of 328.07 feet to the East line of said
Southeast Quarter (SE 1/4); thence South 1 degree 25'51" West along the
East line, a distance of 307.06 feet to the point of beginning, subject
to easements and restrictions of record.
(m) Linn County, filed 1-17-96, Book 3281, Page 119
Beginning at the Northeast corner of Lot 1, Block 61, Original Town, now
City of Marion, Iowa; thence South twenty-five (25) feet along the East
lot line of Lot 1 to the point of beginning; thence West thirty-eight
(38) feet to a point twenty-five (25) feet South of the North line of
Lot 1; thence Southwesterly nineteen (19) feet to a point forty (40)
feet South of the North line of Lot 1; thence West forty-eight (48) feet
to a point; thence South ninety-five (95) feet to a point one hundred
and thirty-five (135) feet south of the North line of Lot 1; thence East
ninety-eight (98) feet to the East lot line; thence North one hundred
and ten (110) feet along the East lot line to the point of beginning,
all in the City of Marion, Linn County, Iowa.
(n) Linn County, filed 1-17-96, Book 3281, Page 120
Lots 1 thru 8, Block 61, Original Town, now City of Marion, Iowa,
excepting therefrom the following described parcel:
From a point of beginning at the Northeast corner of Lot 1, Block 61,
Original Town, now City of Marion, Iowa; thence South one hundred thirty-
five (135) feet along the East lot line; thence West ninety-eight (98)
feet to a point; thence north one hundred and thirty-five (135) feet to
the North lot line; thence East ninety-eight (98) feet to the point of
beginning, all in the City of Marion, Linn County, Iowa.
(o) Keokuk County, filed 1-26-96, Book 243, Page 197
That part of Subdivision 2 of Out Lot 1 of A. E. Lowe's Addition in
Sigourney, Iowa, lying North of a line, which line is parallel with the
South line of said Subdivision 2 of Out Lot 1, and is 177 feet North
thereof, as measured along the East line of said Subdivision 2 of Out
Lot 1, being situated in the City of Sigourney, County of Keokuk, and
State of Iowa.
(p) Story County, filed 2-1-96, Book 96, Page 960
Parcel "A" in the Northwest Quarter of Section 19, Township 85 North,
Range 21 West of the 5th P.M., Story County, Iowa, as shown by the Plat
of Survey filed in the Office of the Recorder of Story County, Iowa, in
Certificate and Field Notes in Book 13, Page 164 on December 19, 1995.
<PAGE>
EXHIBIT 4(c)(ii)
IES UTILITIES INC.
CHAIRMAN'S CERTIFICATE
I, Lee Liu, as Chairman of the Board, President & Chief
Executive Officer of IES Utilities Inc. ("Company"), pursuant to the authority
directed to me by the Board of Directors of the Company on February 6, 1996,
hereby requests the authentication and delivery of:
(i) the Collateral Trust Bonds, 7 1/4% Series Due 2006
("Bonds") to be issued under the Fourth Supplemental Indenture dated as
of September 1, 1996 ("Fourth Supplemental Indenture") to 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 ("1993 Mortgage
Trustee"), as previously supplemented by three supplemental indentures
(as so supplemented, "1993 Mortgage"); and
(ii) the First Mortgage Bonds, Collateral Series D, Due 2006
("First Mortgage Bonds") to be issued under the Sixty-Second
Supplemental Indenture dated as of September 1, 1996 ("Sixty-Second
Supplemental Indenture") to 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 ("1940 Mortgage Trustee"), as previously
supplemented by sixty-one supplemental indentures (as so supplemented,
the "1940 Mortgage");
with the respective interest rates, payment dates, prices and other terms and
conditions set forth below:
1. The Bonds shall be issued in the principal amount of
$60,000,000 and shall be known and designated as the "Collateral Trust
Bonds, 7 1/4% Series Due 2006."
2. The stated maturity of the principal of the Bonds shall be
October 1, 2006.
3. The Bonds shall bear interest at the rate of 7 1/4% per annum
from September 27, 1996, payable on each April 1 and October 1,
commencing April 1, 1997, until the payment thereof is paid or made
available for payment.
4. The Bonds shall not be subject to redemption at the option of
the Company prior to maturity, except that they will be redeemable, in
whole at any time or in part from time to time, upon at least 30 days'
<PAGE>
CHAIRMAN'S CERTIFICATE
Page 2
notice, at the special redemption price of 100% of the principal
amount thereof, plus accrued interest thereon to the redemption date,
through the application of cash received by the 1993 Mortgage Trustee
as a result of the taking by eminent domain or of the purchase by a
public authority of properties of the Company as provided in the 1993
Mortgage.
5. The Bonds shall initially be issued in the form of one or more
global bonds, registered in the name of The Depository Trust Company
("DTC") or its nominee and deposited with, or on behalf of, DTC, as
more fully set forth in the Appendix hereto, which Appendix, pursuant
to Section 301 of the 1993 Mortgage, shall constitute a term of the
Bonds.
6. The Company has entered into an Underwriting Agreement dated
September 19, 1996 between the Company and Citicorp Securities, Inc.
as underwriter (the "Underwriter") to issue and sell the Bonds to such
Underwriter at a purchase price of $59,641,800. The form and substance
of the Underwriting Agreement is hereby approved and ratified.
7. The First Mortgage Bonds shall be issued to the Trustee in the
principal amount of $60,000,000 and shall be known and designated as
the "First Mortgage Bonds, Collateral Series D, Due 2006."
8. The stated maturity of the principal of the First Mortgage
Bonds shall be October 1, 2006.
9. The First Mortgage Bonds shall bear no interest.
10. The First Mortgage Bonds shall be subject to redemption at
any time at a redemption price equal to 100% of the principal amount
thereof, together with accrued interest, if any. The First Mortgage
Bonds shall be redeemed no later than the redemption of the Bonds, in
a principal amount equal to the principal amount of the Bonds being
redeemed.
11. The Fourth Supplemental Indenture, the Sixty-Second
Supplemental Indenture, and the specimens of the Bond attached hereto
and the First Mortgage Bond attached hereto are all hereby approved.
-2-
<PAGE>
CHAIRMAN'S CERTIFICATE
Page 3
Executed this 27th day of September, 1996.
/s/ Lee Liu
-------------------------------------
Lee Liu
Chairman of the Board, President
& Chief Executive Officer
ATTEST:
/s/ Stephen W. Southwick
- -------------------------------
Stephen W. Southwick
Vice President, General Counsel
& Secretary
-3-
<PAGE>
APPENDIX
Book Entry Bonds
(a) Except as provided in subsection (c) below, the registered owner of all
Bonds shall be CEDE & Co., as nominee of The Depository Trust Company ("DTC").
Payment of interest for any Bonds registered as of each Record Date in the name
of CEDE & Co. shall be made by wire transfer to the account of CEDE & Co. on the
Interest Payment Date for such Bonds at the address indicated on the Record Date
for CEDE & Co. in the registration books of the Company kept by Trustee, as
registrar.
(b) The Bonds shall initially be issued in the form of one or more fully
registered global bonds which will have an aggregate principal amount equal to
the Bonds represented thereby. Upon initial issuance, the ownership of the Bonds
shall be registered in the registration books of the Company kept by the Trustee
in the name of CEDE & Co., as nominee of DTC. The Trustee and the Company may
treat DTC (or its nominee) as the sole and exclusive owner of the Bonds
registered in its name for the purposes of payment of the principal of, premium,
if any, or interest on such Bonds, giving any notice permitted or required to be
given to Holders under the Indenture, registering the transfer of such Bonds,
obtaining any consent or other action to be taken by Holders and for all other
purposes whatsoever; and neither the Trustee nor the Company shall be affected
by any notice to the contrary. Neither the Trustee nor the Company shall have
any responsibility or obligation to any DTC participant, any Person claiming a
beneficiary ownership interest in Bonds registered in the name of CEDE & Co.
under or through DTC or any DTC participant, or any other Person which is not
shown on the registration books of the Company kept by the Trustee as being a
Holder with respect to the accuracy of any records maintained by DTC, CEDE & Co.
or any DTC participant; the payment by DTC or any DTC participant to any
beneficial owner of any amount in respect of the principal of, premium, if any,
or interest on the Bonds registered in the name of CEDE & Co.; the delivery to
any DTC participant or any beneficial owner of any notice which is permitted or
required to be given to Holders under the Indenture; the selection by DTC or any
DTC participant of any Person to receive payment in the event of a partial
payment of any Bonds registered in the name of CEDE & Co.; or any consent given
or other action taken by DTC as Holder. The Paying Agent shall pay all principal
of, premium, if any, and interest on any Bonds registered in the name of CEDE &
Co., only to or upon the order of CEDE & Co., as nominee of DTC, and all such
payments shall be valid and effective to fully satisfy and discharge the
Company's obligations with respect to the principal of, premium, if any, and
interest on such Bonds to the extent of the sum or sums so paid. Upon delivery
by DTC to the Trustee of written notice to the effect that DTC had determined to
substitute a new nominee in place of CEDE & Co., and subject to the provisions
herein with respect to record dates, the words "CEDE & Co." herein shall refer
to such new nominee of DTC.
<PAGE>
(c) A Global Bond shall be exchangeable for definitive certificates
registered in the names of persons other than DTC or its nominee only if (i) DTC
notifies the Company that it is unwilling or unable to continue as a depositary
for such Global Bond and no successor depositary shall have been appointed, or
if at any time DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, at a time when DTC is required to be so
registered to act as such depositary, (ii) the Company in its sole discretion
determines that such Global Bond shall be so exchangeable or (iii) there shall
have occurred and be continuing an Event of Default with respect to the Bonds.
In any such event, the Trustee shall issue, register the transfer of and
exchange definitive certificates as requested by DTC in appropriate amounts and
the Company and the Trustee shall be obligated to deliver definitive
certificates as described in the Indenture. In the event definitive certificates
are issued to Holders other than DTC, the provisions of the Indenture shall
apply to, among other things, the registration, transfer of and exchange of such
certificates and the method of payment of principal of, premium, if any, and
interest on such certificates. Whenever DTC requests the Company and the Trustee
to do so, the Trustee and the Company will cooperate with DTC in taking
appropriate action after reasonable notice (i) to make available one or more
separate certificates evidencing the Bonds registered in the name of CEDE & Co.,
to any DTC participant having Bonds credited to its DTC account or (ii) to
arrange for another bonds depository to maintain custody of certificates
evidencing such Bonds.
(d) Notwithstanding any other provision of the Indenture to the contrary,
so long as any Bonds are registered in the name of CEDE & Co., as nominee of
DTC, all payments with respect to the principal of, premium, if any, and
interest on such Bonds and all notices, with respect to such Bonds shall be made
and given to DTC as provided in the applicable Letter of Representations.
(e) In connection with any notice or other communication to be provided to
Holders pursuant to the Indenture by the Company or the Trustee with respect to
any consent or other action to be taken by Holders, so long as any Bonds are
registered in the name of CEDE & Co., as nominee of DTC, the Company or the
Trustee, as the case may be, shall establish a record date for such consent or
other action and give DTC notice of such record date not less than 15 calendar
days in advance of such record date to the extent possible.
(f) The notice requirements set forth in the Letter of Representations
relating to the Bonds with respect to redemptions, conversions and mandatory
tenders shall be effective whenever the Bonds are Book-Entry Bonds,
notwithstanding any other provision of the Indenture, to the extent such other
provisions are incompatible with the notice requirements set forth in the Letter
of Representation.
-2-
<PAGE>
CONFORMED COPY
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 September 1, 1996
__________________________
SUPPLEMENTAL TO
INDENTURE OF MORTGAGE AND DEED OF TRUST
DATED AS OF AUGUST 1, 1940
THIS SIXTY-SECOND SUPPLEMENTAL INDENTURE, dated as of
September 1, 1996, 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 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 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 2006" (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 degree 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 degree
58 1/2`E, 290.4 ft. along said right of way line; thence N 02 degree 42'W,
55.1 ft. along said right of way line; thence S37 degree 47 1/2`E, 126.6 ft.;
thence S00 degree 01 1/2` W, 75.0 ft. thence S29 degree 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
(l) Story County, filed 1-8-96, Book 96, Page 229
That part of the Southeast Quarter (SE 1/4) of Section 14, Township 85
North, Range 23 West of the 5th P.M., Story County, Iowa, lying South of
the former Chicago and Northwestern R.R. Co. right of way, more
particularly described as follows: Commencing at the Southeast Corner
of said Section 14; thence North 1 degree 25'51" East along the East
line of said Southeast Quarter (SE 1/4) of Section 14, a distance of
623.33 feet to the point of beginning; thence North 90 degree 00'00"
West parallel to the South line of said Southeast Quarter (SE 1/4),
a distance of 328.16 feet; thence North 1 degree 25'51" East parallel to
the East line of said Southeast Quarter (SE 1/4), a distance of 313.53
feet to the South right of way line of the former Chicago and Northwestern
R.R.; thence South 88 degree 52'11" East along the South right of way
line, a distance of 328.07 feet to the East line of said Southeast
Quarter (SE 1/4); thence South 1 degree 25'51" West along the East line,
a distance of 307.06 feet to the point of beginning, subject to easements
and restrictions of record.
(m) Linn County, filed 1-17-96, Book 3281, Page 119
Beginning at the Northeast corner of Lot 1, Block 61, Original Town, now
City of Marion, Iowa; thence South twenty-five (25) feet along the East
lot line of Lot 1 to the point of beginning; thence West thirty-eight
(38) feet to a point twenty-five (25) feet South of the North line of
Lot 1; thence Southwesterly nineteen (19) feet to a point forty (40)
feet South of the North line of Lot 1; thence West forty-eight (48) feet
to a point; thence South ninety-five (95) feet to a point one hundred
and thirty-five (135) feet south of the North line of Lot 1; thence East
ninety-eight (98) feet to the East lot line; thence North one hundred
and ten (110) feet along the East lot line to the point of beginning,
all in the City of Marion, Linn County, Iowa.
(n) Linn County, filed 1-17-96, Book 3281, Page 120
Lots 1 thru 8, Block 61, Original Town, now City of Marion, Iowa,
excepting therefrom the following described parcel:
From a point of beginning at the Northeast corner of Lot 1, Block 61,
Original Town, now City of Marion, Iowa; thence South one hundred thirty-
five (135) feet along the East lot line; thence West ninety-eight (98)
feet to a point; thence north one hundred and thirty-five (135) feet to
the North lot line; thence East ninety-eight (98) feet to the point of
beginning, all in the City of Marion, Linn County, Iowa.
(o) Keokuk County, filed 1-26-96, Book 243, Page 197
That part of Subdivision 2 of Out Lot 1 of A. E. Lowe's Addition in
Sigourney, Iowa, lying North of a line, which line is parallel with the
South line of said Subdivision 2 of Out Lot 1, and is 177 feet North
thereof, as measured along the East line of said Subdivision 2 of Out
Lot 1, being situated in the City of Sigourney, County of Keokuk, and
State of Iowa.
(p) Story County, filed 2-1-96, Book 96, Page 960
Parcel "A" in the Northwest Quarter of Section 19, Township 85 North,
Range 21 West of the 5th P.M., Story County, Iowa, as shown by the Plat
of Survey filed in the Office of the Recorder of Story County, Iowa, in
Certificate and Field Notes in Book 13, Page 164 on December 19, 1995.
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 2006," 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 $60,000,000, 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 October 1, 2006, 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 will be redeemable, at the option of the
Company, in whole at any time or in part from time to time, upon 30 days
notice, at a redemption price equal to 100% of the principal amount
thereof together with accrued interest, if any, thereon to the date
fixed for redemption. The Bonds shall be redeemed 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.
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]
This Bond is not transferable except to a successor trustee under
the Indenture of Mortgage and Deed of Trust, dated as of September 1,
1993, between IES Utilities Inc. and The First National Bank of Chicago,
Trustee.
No. $
IES UTILITIES INC.
FIRST MORTGAGE BOND, COLLATERAL SERIES D
Due 2006
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
________________, as trustee under the Indenture of Mortgage and Deed of
Trust, dated as of September 1, 1993, between the Company and such
trustee, or registered assigns, on the first day of October, 2006, the
sum of $___________ 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, the Bond
shall bear interest on such defaulted principal at the rate of six
percent 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 2006
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 September 1, 1996) 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 2006".
Any payment or deemed payment by the Company of the principal
of or interest, if any, on the Collateral Trust Securities (as defined
in the Sixty-second Supplemental Indenture) (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 redeemable, at the option of the Company, in
whole at any time or in part from time to time, upon 30 days notice, at
a redemption price equal to 100% of the principal amount thereof
together with accrued interest, if any, thereon to the date fixed for
redemption. This Bond is also 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 /s/ James E. Hoffman
James E. Hoffman
Executive Vice President
(CORPORATE SEAL)
ATTEST:
/s/ Stephen W. Southwick
Secretary
Stephen W. Southwick
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
By
John R. Prendiville
Vice President
(CORPORATE SEAL)
ATTEST:
Authorized Officer
Georgia E. Tsirbas
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 __________________________
James E. Hoffman
Executive Vice President
(CORPORATE SEAL)
ATTEST:
Secretary
Stephen W. Southwick
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
(CORPORATE SEAL)
ATTEST:
/s/ Georgia E. Tsirbas
Authorized Officer
Georgia E. Tsirbas
STATE OF IOWA )
) ss:
COUNTY OF LINN )
On this 19th day of September, 1996 before me, Marcia K.
Young, a Notary Public in and for the said County in the state
aforesaid, personally appeared James E. Hoffman and Stephen W.
Southwick, 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 James E. Hoffman is Executive Vice President, and that he
the said Stephen W. Southwick 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 James E. Hoffman and
Stephen W. Southwick 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 19th day of September,
1996.
/s/ Marcia K. Young
Notary Public
My Commission expires: February 27, 1998
(NOTARIAL SEAL)
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
On this 19th day of September, 1996, before me, the
undersigned, a Notary Public in and for said County in the State
aforesaid, personally appeared John R. Prendiville and Georgia E.
Tsirbas, to me personally known, and to me known to be a Vice President
and an Assistant Vice President, 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 John R. Prendiville is a Vice
President that the said Georgia E. Tsirbas is an Assistant Vice
President 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 John R. Prendiville and Georgia E. Tsirbas 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 19th day of September,
1996.
/s/ Mietka T. Collins
Notary Public
My Commission expires: ___________________
(NOTARIAL SEAL)
<PAGE>
