UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission Registrant; State of Incorporation; IRS Employer
File Number Address; and Telephone Number Identification No.
1-9187 IES INDUSTRIES INC. (an Iowa Corporation) 42-1271452
IES Tower, Cedar Rapids, Iowa 52401
319-398-4411
0-4117-1 IES UTILITIES INC. (an Iowa Corporation) 42-0331370
IES Tower, Cedar Rapids, Iowa 52401
319-398-4411
Indicate by check mark whether the registrants (1) have filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrants were required to file such reports), and (2)
have been subject to such filing requirements for the past 90 days.
Yes X No
--- ---
Indicate the number of shares outstanding of each of the registrants'
classes of common stock, as of October 31, 1997.
IES Industries Inc. Common Stock, no par value - 30,542,669 shares
IES Utilities Inc. Common Stock, $2.50 par value - 13,370,788 shares
IES INDUSTRIES INC. AND IES UTILITIES INC.
INDEX
Page No.
Part I. Financial Information.
Item 1. Consolidated Financial Statements.
IES Industries Inc.:
Consolidated Balance Sheets -
September 30, 1997 and December 31, 1996 ............. 3 - 4
Consolidated Statements of Income -
Three, Nine and Twelve Months Ended
September 30, 1997 and 1996 .......................... 5
Consolidated Statements of Cash Flows -
Three, Nine and Twelve Months Ended
September 30, 1997 and 1996 .......................... 6
Notes to Consolidated Financial Statements ............. 7 - 14
IES Utilities Inc.:
Consolidated Balance Sheets -
September 30, 1997 and December 31, 1996 ............. 15 - 16
Consolidated Statements of Income -
Three, Nine and Twelve Months Ended
September 30, 1997 and 1996 .......................... 17
Consolidated Statements of Cash Flows -
Three, Nine and Twelve Months Ended
September 30, 1997 and 1996 .......................... 18
Notes to Consolidated Financial Statements ............. 19
Item 2. Management's Discussion and Analysis of the
Results of Operations and Financial Condition. ........... 20 - 34
Part II. Other Information. ....................................... 35 - 38
Signatures. ....................................................... 39 - 40
PART I - FINANCIAL INFORMATION
ITEM 1. - CONSOLIDATED FINANCIAL STATEMENTS
IES INDUSTRIES INC. CONSOLIDATED BALANCE SHEETS
September 30,
1997 December 31,
ASSETS (in thousands) (Unaudited) 1996
Property, plant and equipment:
Utility -
Plant in service -
Electric $ 2,045,422 $ 2,007,839
Gas 181,995 175,472
Other 131,302 126,850
2,358,719 2,310,161
Less - Accumulated depreciation 1,104,678 1,030,390
1,254,041 1,279,771
Leased nuclear fuel, net of amortization 37,968 34,725
Construction work in progress 61,932 43,719
1,353,941 1,358,215
Other, net of accumulated depreciation
and amortization of $84,253 and
$70,031, respectively 244,964 223,805
1,598,905 1,582,020
Current assets:
Cash and temporary cash investments 23,046 8,675
Accounts receivable -
Customer, less allowance for doubtful
accounts of $909 and $1,087, respectively 26,155 50,821
Other 8,593 12,040
Income tax refunds receivable 11,364 8,890
Production fuel, at average cost 10,801 13,323
Materials and supplies, at average cost 24,181 22,842
Adjustment clause balances 0 10,752
Regulatory assets 36,718 26,539
Prepayments and other 21,148 24,169
162,006 178,051
Investments:
Investment in McLeodUSA Inc. 403,027 29,200
Nuclear decommissioning trust funds 74,455 59,325
Investment in foreign entities 47,726 44,946
Cash surrender value of life
insurance policies 12,251 11,217
Other 7,037 4,903
544,496 149,591
Other assets:
Regulatory assets 191,476 201,129
Deferred charges and other 16,966 14,771
208,442 215,900
$ 2,513,849 $ 2,125,562
IES INDUSTRIES INC. CONSOLIDATED BALANCE SHEETS (CONTINUED)
September 30,
CAPITALIZATION AND LIABILITIES 1997 December 31,
(in thousands, except share amounts) (Unaudited) 1996
Capitalization:
Common stock - no par value -
authorized 48,000,000 shares;
outstanding 30,467,739 and 30,077,212
shares, respectively $ 419,167 $ 407,635
Retained earnings 223,871 219,246
Unrealized security gains (net of taxes) 218,567 0
Cumulative foreign currency translation
adjustments -19 0
Total common equity 861,586 626,881
Cumulative preferred stock of
IES Utilities Inc. 18,320 18,320
Long-term debt (excluding current portion) 854,468 701,100
1,734,374 1,346,301
Current liabilities:
Short-term borrowings 0 135,000
Capital lease obligations 13,294 15,125
Maturities and sinking funds 493 8,473
Accounts payable 49,442 99,861
Dividends payable 16,619 16,431
Accrued interest 12,206 8,985
Accrued taxes 68,833 43,926
Accumulated refueling outage provision 7,970 1,316
Adjustment clause balances 782 0
Environmental liabilities 5,607 5,679
Other 18,507 22,087
193,753 356,883
Long-term liabilities:
Pension and other benefit obligations 47,331 39,643
Capital lease obligations 24,674 19,600
Environmental liabilities 47,402 47,502
Other 23,909 18,488
143,316 125,233
Deferred credits:
Accumulated deferred income taxes 409,910 262,675
Accumulated deferred investment tax credits 32,496 34,470
442,406 297,145
Commitments and contingencies (Note 7)
$ 2,513,849 $ 2,125,562
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
<TABLE>
IES INDUSTRIES INC. CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<CAPTION>
For the Three For the Nine For the Twelve
Months Ended Months Ended Months Ended
September 30 September 30 September 30
1997 1996 1997 1996 1997 1996
(in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C> <C>
Operating revenues:
Electric $ 184,676 $ 173,626 $ 459,653 $ 436,027 $ 597,899 $ 562,996
Gas 15,507 28,461 125,381 161,112 238,247 224,666
Other 33,639 31,820 101,608 90,617 136,651 116,792
233,822 233,907 686,642 687,756 972,797 904,454
Operating expenses:
Fuel for production 27,613 29,148 84,026 72,168 96,437 96,733
Purchased power 18,749 18,655 52,472 55,125 85,697 68,600
Gas purchased for resale 7,795 20,841 88,136 120,091 185,396 166,538
Other operating expenses 59,061 55,554 165,381 160,367 219,772 217,788
Maintenance 13,120 14,091 40,169 40,011 49,159 50,067
Depreciation and amortization 27,664 27,417 84,985 82,025 110,353 105,320
Taxes other than income taxes 12,248 12,500 38,441 38,503 48,109 47,510
166,250 178,206 553,610 568,290 794,923 752,556
Operating income 67,572 55,701 133,032 119,466 177,874 151,898
Interest expense and other:
Interest expense 16,339 13,666 46,777 39,506 62,093 52,511
Allowance for funds used
during construction -784 -761 -1,551 -2,141 -1,512 -2,904
Preferred dividend requirements
of IES Utilities Inc. 229 229 686 686 914 914
Miscellaneous, net -1,929 4,883 -235 2,510 -414 1,132
13,855 18,017 45,677 40,561 61,081 51,653
Income before income taxes 53,717 37,684 87,355 78,905 116,793 100,245
Income taxes:
Current 19,913 14,975 40,906 34,551 44,602 45,048
Deferred 2,716 2,481 -3,988 3,298 4,548 1,008
Amortization of investment
tax credits -658 -661 -1,974 -1,984 -2,635 -2,658
21,971 16,795 34,944 35,865 46,515 43,398
Net income $ 31,746 $ 20,889 $ 52,411 $ 43,040 $ 70,278 $ 56,847
Average number of common
shares outstanding 30,452 29,941 30,321 29,796 30,256 29,716
Earnings per average
common share $ 1.04 $ 0.70 $ 1.73 $ 1.44 $ 2.32 $ 1.91
Dividends declared per
common share $ 0.525 $ 0.525 $ 1.575 $ 1.575 $ 2.10 $ 2.10
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
</TABLE>
<TABLE>
IES INDUSTRIES INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<CAPTION>
For the Three For the Nine For the Twelve
Months Ended Months Ended Months Ended
September 30 September 30 September 30
1997 1996 1997 1996 1997 1996
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net income $ 31,746 $ 20,889 $ 52,411 $ 43,040 $ 70,278 $ 56,847
Adjustments to reconcile net income to
net cash flows from operating
activities -
Depreciation and amortization 27,664 27,417 84,985 82,025 110,353 105,320
Amortization of principal under
capital lease obligations 3,559 4,945 10,668 14,195 12,964 19,108
Deferred taxes and investment
tax credits 2,058 1,820 -5,962 1,314 1,913 -1,650
Refueling outage provision 2,464 1,831 6,654 6,751 -6,471 9,199
Amortization of other assets 4,248 2,041 9,474 7,191 12,071 9,845
Other -274 -751 2,779 542 3,092 262
Other changes in assets and liabilities -
Accounts receivable -2,571 9,118 28,113 11,418 -5,459 -246
Sale of utility accounts receivable 0 0 0 7,000 0 0
Production fuel, materials and
supplies 2,942 -957 1,882 -473 3,005 3,445
Accounts payable -8,530 -1,840 -47,740 -12,078 -14,728 2,527
Accrued taxes 29,306 21,164 22,433 8,777 -4,309 -10,860
Provision for rate refunds 0 -43 0 -106 0 -12,966
Adjustment clause balances -3,533 -3,559 11,534 -3,898 1,532 -1,220
Gas in storage -5,413 -8,610 3,409 635 1,619 -1,523
Other -1,804 -2,744 3,662 1,980 13,485 3,431
Net cash flows from operating
activities 81,862 70,721 184,302 168,313 199,345 181,519
Cash flows from financing activities:
Dividends declared on common stock -15,994 -15,725 -47,786 -46,950 -63,574 -62,438
Proceeds from issuance of common
stock 3,225 3,381 9,851 10,780 13,235 14,901
Purchase of treasury stock 0 0 -83 -269 -83 -269
Net change in IES Diversified Inc.
credit facility 388 -2,954 19,160 8,016 59,004 44,261
Proceeds from issuance of other
long-term debt 135,000 60,000 190,000 60,000 190,000 110,003
Reductions in other long-term debt -84 -15,078 -63,358 -15,374 -63,438 -65,447
Net change in short-term borrowings -150,000 -47,000 -135,000 -23,000 -78,000 29,000
Principal payments under capital
lease obligations -3,740 -4,626 -9,405 -14,162 -14,351 -19,096
Other -668 -112 -633 -203 -888 -1,817
Net cash flows from financing
activities -31,873 -22,114 -37,254 -21,162 41,905 49,098
Cash flows from investing activities:
Construction and acquisition
expenditures -
Utility -26,271 -39,701 -74,502 -97,043 -119,717 -133,483
Other -9,156 -11,859 -44,826 -45,665 -95,281 -79,683
Oil and gas properties held for
resale 0 0 0 9,843 0 0
Deferred energy efficiency
expenditures -920 -3,887 -8,450 -12,643 -12,664 -17,708
Nuclear decommissioning trust funds -1,502 -1,502 -4,506 -4,506 -6,008 -6,008
Proceeds from disposition of assets 2,107 1,984 3,889 3,840 8,344 8,153
Other -133 204 -4,282 447 -1,244 2,051
Net cash flows from investing
activities -35,875 -54,761 -132,677 -145,727 -226,570 -226,678
Net increase (decrease) in cash
and temporary cash investments 14,114 -6,154 14,371 1,424 14,680 3,939
Cash and temporary cash investments
at beginning of period 8,932 14,520 8,675 6,942 8,366 4,427
Cash and temporary cash investments
at end of period $ 23,046 $ 8,366 $ 23,046 $ 8,366 $ 23,046 $ 8,366
Supplemental cash flow information:
Cash paid during the period for -
Interest $ 12,041 $ 12,899 $ 41,679 $ 36,435 $ 58,290 $ 52,480
Income taxes $ 103 $ 3,568 $ 29,300 $ 36,316 $ 47,864 $ 53,206
Noncash investing and financing
activities -
Capital lease obligations incurred $ 13,789 $ 939 $ 13,912 $ 13,785 $ 14,408 $ 13,896
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
</TABLE>
This document contains the Quarterly Reports on Form 10-Q for the
quarter ended September 30, 1997 for each of IES Industries Inc. and IES
Utilities Inc. Information contained herein relating to an individual
registrant is filed by such registrant on its own behalf. Accordingly,
except for its subsidiaries, IES Utilities Inc. makes no representation
as to information relating to IES Industries Inc. or to any other
companies affiliated with IES Industries Inc. IES Industries Inc. and
its consolidated subsidiaries may collectively be referred to as "the
Company".
From time to time, the Company may make forward-looking statements
within the meaning of the federal securities laws that involve
judgments, assumptions and other uncertainties beyond the control of the
Company. These forward-looking statements may include, among others,
statements concerning revenue and cost trends, cost recovery, cost
reduction strategies and anticipated outcomes, pricing strategies,
changes in the utility industry, planned capital expenditures, financing
needs and availability, statements of the Company's expectations,
beliefs, future plans and strategies, anticipated events or trends and
similar comments concerning matters that are not historical facts.
Investors and other users of the forward-looking statements are
cautioned that such statements are not a guarantee of future performance
of the Company and that such forward-looking statements are subject to
risks and uncertainties that could cause actual results to differ
materially from those expressed in, or implied by, such statements.
Some, but not all, of the risks and uncertainties include weather
effects on sales and revenues, competitive factors, general economic
conditions in the Company's service territory, federal and state
regulatory or government actions, results of operations from potential
domestic and international investments, the operating of a nuclear
facility and changes in the rate of inflation.
IES INDUSTRIES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 30, 1997
(1) GENERAL:
The interim Consolidated Financial Statements have been prepared by
IES Industries Inc. (Industries) and its consolidated subsidiaries,
without audit, pursuant to the rules and regulations of the United
States Securities and Exchange Commission (SEC). Industries' wholly-
owned subsidiaries are IES Utilities Inc. (Utilities) and IES
Diversified Inc. (Diversified). Industries is an investor-owned holding
company whose primary operating company, Utilities, is engaged
principally in the generation, transmission, distribution and sale of
electric energy and the purchase, distribution, transportation and sale
of natural gas. The Company's principal markets are located in the
State of Iowa. The Company also has various non-utility subsidiaries
which are primarily engaged in the energy-related, transportation and
real estate development businesses.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such
rules and regulations, although the Company believes that the
disclosures are adequate to make the information presented not
misleading. In the opinion of the Company, the Consolidated Financial
Statements include all adjustments, which are normal and recurring in
nature, necessary for the fair presentation of the results of operations
and financial position. Certain prior period amounts have been
reclassified on a basis consistent with the 1997 presentation.
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect: 1) the reported amounts of assets
and liabilities and the disclosure of contingent assets and liabilities
at the date of the financial statements, and 2) the reported amounts of
revenues and expenses during the reporting period. Actual results could
differ from those estimates.
It is suggested that these Consolidated Financial Statements be
read in conjunction with the Consolidated Financial Statements and the
notes thereto included in the Company's Form 10-K for the year ended
December 31, 1996. The accounting and financial policies relative to
the following items have been described in those notes and have been
omitted herein because they have not changed materially through the date
of this report:
Summary of significant accounting policies
Leases
Utility accounts receivable (other than discussed in Note 4)
Income taxes
Benefit plans
Common, preferred and preference stock
Debt (other than discussed in Note 6)
Estimated fair value of financial instruments (other than discussed
in Note 5)
Derivative financial instruments
Commitments and contingencies (other than discussed in Note 7)
Jointly-owned electric utility plant
Segments of business
(2) PROPOSED MERGER OF THE COMPANY:
On November 10, 1995, Industries, WPL Holdings, Inc. (WPLH) and
Interstate Power Company (IPC) entered into an Agreement and Plan of
Merger, as amended (Merger Agreement). At the 1996 annual meetings, the
shareowners of all three companies approved the Merger Agreement. The
merger is still subject to approval by the Federal Energy Regulatory
Commission (FERC) and the SEC. See Management's Discussion and Analysis
of Financial Condition and Results of Operations for a further
discussion.
(3) RATE MATTERS:
(a) Electric and Gas Prices -
In September 1997, Utilities agreed with the Iowa Utilities Board
(IUB) to allow Iowa customers a four year retail electric and gas price
freeze commencing from the effective date of the merger. The agreement
excluded price changes due to government-mandated programs, such as
energy efficiency cost recovery, or unforeseen dramatic changes in
operations. Utilities, Wisconsin Power and Light Company (WP&L) and IPC
also proposed to freeze their wholesale electric prices for four years
from the effective date of the merger as part of their merger filing
with the FERC. The Company does not expect the merger-related electric
and gas price freezes to have a material adverse effect on its financial
position or results of operations.
(b) Energy Efficiency Cost Recovery -
Under provisions of the IUB rules, Utilities is currently
recovering the costs incurred through 1993 for its energy efficiency
programs, including its direct expenditures, carrying costs, a return on
its expenditures and a reward. These costs are being recovered over a
four-year period and the recovery began on June 1, 1995.
In December 1996, under provisions of the IUB rules, the Company
filed for recovery of the costs relating to its 1994 and 1995 programs.
The Company received the IUB's final order in the proceeding in May 1997
which allowed for recovery of direct expenditures and carrying costs as
well as a return on the expenditures over the recovery period. These
costs are being recovered over a four-year period that commenced on
August 1, 1997.
Iowa statutory changes enacted in 1996 have eliminated: 1)
specific electric and gas percentage spending requirements in favor of
IUB-determined energy savings targets, 2) the delay in recovery of
energy efficiency costs by allowing recovery which is concurrent with
spending and 3) the recovery of a sharing reward. The IUB commenced a
rulemaking in January 1997 to implement the statutory changes and a
final order in this proceeding was issued in April 1997. The new rules
provide that the Company recover its 1996 expenditures, and the 1997
expenditures incurred prior to August 1, 1997, over a four-year recovery
period which began on August 1, 1997. The Company also began concurrent
recovery of its prospective expenditures on August 1, 1997. The
implementation of these changes will gradually eliminate the regulatory
asset which was created under the prior rate making mechanism as these
costs are recovered.
The Company has the following amounts of energy efficiency costs
included in regulatory assets on its Consolidated Balance Sheets (in
thousands):
September 30, December 31,
1997 1996
Costs incurred through 1993 $ 8,995 $ 12,834
Costs incurred in 1994-1995 33,085 33,161
Costs incurred from 1/1/96 - 7/31/97 21,450 15,087
(Over)/under collection of concurrent recovery 1,544 -
$ 65,074 $ 61,082
The above amounts include the direct expenditures and carrying
costs incurred by the Company but do not include any amounts for a
return on its expenditures over the recovery period.
(4) UTILITY ACCOUNTS RECEIVABLE:
Utilities has entered into an agreement, which expires in 1999,
with a financial institution to sell, with limited recourse, an
undivided fractional interest of up to $65 million in its pool of
utility accounts receivable. At September 30, 1997, $65 million was
sold under the agreement.
SFAS 125, issued by the FASB in 1996 and effective for 1997,
provides accounting and reporting standards for transfers and servicing
of financial assets and extinguishment of liabilities. The accounting
for Utilities' sale of accounts receivable agreement is impacted by this
standard. As a result, the agreement was modified in the first quarter
of 1997 to comply with the SFAS 125 requirements and thus the accounting
and reporting for the sale of Utilities' receivables remains unchanged.
(5) INVESTMENTS:
(a) McLeodUSA Inc. (McLeod) -
At September 30, 1997, the Company had the following investment in
McLeod, a telecommunications company (all figures are in millions):
Fair Market
Shares Cost Value
Class A Common Stock 9.0 $ 29.0 $ 354.0
Unexercised Vested Options 1.3 - 51.3
Cost to Exercise Vested Options N/A N/A (2.3)
10.3 $ 29.0 $ 403.0
During the second quarter of 1997, the Company converted its
investment in Class B Common Stock into shares of Class A Common Stock
and contributed 300,000 shares of its McLeod Class A shares to the IES
Industries Charitable Foundation.
The Company has entered into an agreement with McLeod which
restricts the sale or disposal of its shares without the consent of the
McLeod Board of Directors until September 1998.
Pursuant to the provisions of SFAS No. 115, the carrying value of
the McLeod investment was adjusted from a cost basis to estimated fair
value at September 30, 1997, based on the September 30 closing price,
given that such shares have become qualified for sale within a one year
period. The adjustment to reflect the estimated fair value of this
investment did not impact the Company's current earnings as the
resulting unrealized gain, net of taxes, was recorded directly to the
common equity section of the balance sheet ("Unrealized security
gains"). Under SFAS 115, any such gains are reflected in current
earnings only at the time they are realized through a sale by the
Company. It is not possible to estimate what the market value of the
shares will be at September 1998 when the current restriction on sales
expires.
(b) Foreign Entities -
At September 30, 1997, the Company had $47.7 million of investments
in foreign entities on its Consolidated Balance Sheet that included 1)
investments in two New Zealand electric distribution entities, 2) a loan
to a New Zealand company, 3) an investment in a cogeneration facility in
China, and 4) an investment in an international venture capital fund.
The Company accounts for the China investment under the equity method
and the other investments under the cost method. The geographic
concentration of the Company's investments in foreign entities at
September 30, 1997, included investments of approximately $32.7 million
in New Zealand, $14.5 million in China and $0.5 million in other
countries.
(6) DEBT:
(a) Long-Term Debt -
In October 1997, Diversified entered into a 3-Year Credit Agreement
with various banking institutions which replaced its variable rate
credit facility. The new agreement will provide Diversified the ability
to finance additional business development opportunities, as needed.
The agreement extends through October 20, 2000, with one-year extensions
available upon agreement by the parties. The agreement will terminate on
September 1, 1998, however, if the proposed merger discussed in Note 2
is not consummated on or prior to May 10, 1998. The unborrowed portion
of this agreement is also used to support Diversified's commercial paper
program. A combined maximum of $450 million of borrowings under this
agreement and the commercial paper program may be outstanding at any one
time. Interest rates and maturities are set at the time of borrowing
for direct borrowings under this agreement and for issuances of
commercial paper. The interest rate options are based upon quoted
market rates and the maturities are less than one year.
At September 30, 1997, there were no borrowings outstanding under
the variable rate credit facility. Diversified had $191.3 million of
commercial paper outstanding at September 30, 1997, with interest rates
ranging from 5.77% to 5.95% and maturity dates in the fourth quarter of
1997. Diversified intends to continue borrowing under the renewal
options of this facility and the new agreement and no conditions exist
at September 30, 1997, that would prevent such borrowings. Accordingly,
this debt is classified as long-term in the Consolidated Balance Sheets.
In August 1997, Utilities issued $135 million of 6-5/8% Senior
Debentures, due 2009. The proceeds from these debentures were used to
reduce Utilities' short-term borrowings.
Utilities repaid at maturity $8 million of 6-1/8% First Mortgage
Bonds during the second quarter of 1997.
Also in the second quarter of 1997, Utilities issued $55 million of
Collateral Trust Bonds, 6.875%, due 2007. Holders thereof may elect to
have their Collateral Trust Bonds redeemed, in whole but not in part, on
May 1, 2002, at 100% of the principal amount thereof, plus accrued
interest. The proceeds from the Collateral Trust Bonds were used to
refinance $15 million of Series L, 7.875% First Mortgage Bonds, $30
million of Series M, 7.625% First Mortgage Bonds and $10 million of
7.375% First Mortgage Bonds.
(b) Short-Term Debt -
In October 1997, Diversified also entered into a 364-Day Credit
Agreement with various banking institutions. This agreement will also
provide Diversified the ability to finance additional business
development opportunities, as needed. The agreement extends through
October 20, 1998, with 364 day extensions available upon agreement by
the parties. The agreement will terminate on September 1, 1998,
however, if the proposed merger discussed in Note 2 is not consummated
on or prior to May 10, 1998. The unborrowed portion of this agreement
is also used to support Diversified's commercial paper program. A
combined maximum of $150 million of borrowings under this agreement and
the commercial paper program may be outstanding at any one time.
Interest rates and maturities are set at the time of borrowing for
direct borrowings under this agreement and for issuances of commercial
paper. The interest rate options are based upon quoted market rates and
the maturities are less than one year.
At September 30, 1997, the Company had bank lines of credit
aggregating $45.1 million. Utilities was using $11.1 million to support
certain pollution control obligations. Commitment fees are paid to
maintain these lines and there are no conditions which restrict the
unused lines of credit. From time to time, the Company may borrow from
banks and other financial institutions in lieu of commercial paper. The
Company has agreements with several financial institutions for such
borrowings. There are no commitments associated with these agreements
and there were no borrowings outstanding under these agreements at
September 30, 1997.
(7) CONTINGENCIES:
(a) Environmental Liabilities -
The Company has recorded environmental liabilities of approximately
$53 million in its Consolidated Balance Sheets at September 30, 1997.
The Company's significant environmental liabilities are discussed below.
Former Manufactured Gas Plant (FMGP) Sites
Utilities has been named as a Potentially Responsible Party (PRP)
by various federal and state environmental agencies for 28 FMGP sites,
but believes it is not responsible for two of these sites based on
extensive reviews of the ownership records and historical information
available for the two sites. Utilities has notified the appropriate
regulatory agency that it believes it does not have any responsibility
as relates to these two sites, but no response has been received from
the agency on this issue. Utilities is also aware of six other sites
that it may have owned or operated in the past and for which, as a
result, it may be designated as a PRP in the future in the event that
environmental concerns arise at these sites. Utilities is working
pursuant to the requirements of the various agencies to investigate,
mitigate, prevent and remediate, where necessary, damage to property,
including damage to natural resources, at and around the sites in order
to protect public health and the environment. Utilities believes it has
completed the remediation of twelve sites although it is in the process
of obtaining final approval from the applicable environmental agencies
on this issue for each site. Utilities is in various stages of the
investigation and/or remediation processes for the remaining fourteen
sites and estimates the range of additional costs to be incurred for
investigation, remediation and monitoring of the sites to be
approximately $21 million to $52 million.
Utilities has recorded environmental liabilities related to the
FMGP sites of approximately $33 million (including $4.7 million as
current liabilities) at September 30, 1997. These amounts are based
upon Utilities' best current estimate of the amount to be incurred for
investigation, remediation and monitoring costs for those sites where
the investigation process has been or is substantially completed, and
the minimum of the estimated cost range for those sites where the
investigation is in its earlier stages. It is possible that future cost
estimates will be greater than the current estimates as the
investigation process proceeds and as additional facts become known.
Regulatory assets of approximately $33 million, which reflect the future
recovery that is being provided through Utilities' rates, have been
recorded in the Consolidated Balance Sheets. Considering the current
rate treatment allowed by the IUB, management believes that the clean-up
costs incurred by Utilities for these FMGP sites will not have a
material adverse effect on its financial position or results of
operations.
In April 1996, Utilities filed a lawsuit against certain of its
insurance carriers seeking reimbursement for investigation, mitigation,
prevention, remediation and monitoring costs associated with the FMGP
sites. Settlement discussions are proceeding between Utilities and its
insurance carriers regarding the recovery of these FMGP-related costs.
Settlement has been reached with ten carriers and an agreement in
principle has been reached with four other carriers thus far. Amounts
received from insurance carriers are being deferred pending a
determination of the regulatory treatment of such recoveries.
National Energy Policy Act of 1992
The National Energy Policy Act of 1992 requires owners of nuclear
power plants to pay a special assessment into a "Uranium Enrichment
Decontamination and Decommissioning Fund." The assessment is based upon
prior nuclear fuel purchases and, for the Duane Arnold Energy Center
(DAEC), averages $1.4 million annually through 2007, of which Utilities'
70% share is $1.0 million. Utilities is recovering the costs associated
with this assessment through its electric fuel adjustment clauses over
the period the costs are assessed. Utilities' 70% share of the future
assessment at September 30, 1997, $9.9 million payable through 2007, has
been recorded as a liability in the Consolidated Balance Sheets,
including $0.9 million included in "Current liabilities - Environmental
liabilities," with a related regulatory asset for the unrecovered
amount.
Oil and Gas Properties Dismantlement and Abandonment Costs
Whiting Petroleum Corporation (Whiting), a wholly-owned subsidiary
under Diversified, is responsible for certain dismantlement and
abandonment costs related to various off-shore oil and gas properties,
the most significant of which is located off the coast of California.
The Company estimates the total costs for these properties to be
approximately $16 million and the expenditures are not expected to be
incurred for approximately four years. Whiting accrues these costs as
reserves are extracted and such costs are included in "Depreciation and
amortization" in the Consolidated Statements of Income, resulting in a
liability of $9.4 million at September 30, 1997, in the Consolidated
Balance Sheets.
(b) Air Quality Issues -
The Clean Air Act Amendments of 1990 (Act) requires emission
reductions of sulfur dioxide (SO2) and nitrogen oxides (NOx) to achieve
reductions of atmospheric chemicals believed to cause acid rain. The
provisions of the Act are being implemented in two phases; the Phase I
requirements have been met and the Phase II requirements affect eleven
other fossil units beginning in the year 2000. Utilities expects to
meet the requirements of Phase II by switching to lower sulfur fuels,
capital expenditures primarily related to fuel burning equipment and
boiler modifications, the possible purchase of SO2 allowances and a
possible NOx averaging plan. Utilities currently estimates capital
expenditures at approximately $8.6 million, including $0.9 million in
1997, in order to meet the acid rain requirements of the Act.
The acid rain program under the Act also governs SO2 allowances.
An allowance is defined as an authorization for an owner to emit one ton
of SO2 into the atmosphere. Currently, Utilities receives a sufficient
number of allowances annually to offset its emissions of SO2 from its
Phase I units. It is anticipated that in the year 2000, Utilities may
have an insufficient number of allowances annually to offset its
estimated emissions and may have to purchase additional allowances, or
make modifications to the plants or limit operations to reduce
emissions. Utilities is reviewing its options to ensure that it will
have sufficient allowances to offset its emissions in the future.
Utilities believes that the potential cost of ensuring sufficient
allowances will not have a material adverse effect on its financial
position or results of operations.
The Act and other federal laws also require the United States
Environmental Protection Agency (EPA) to study and regulate, if
necessary, additional issues that potentially affect the electric
utility industry, including emissions relating to NOx, ozone transport,
mercury and particulate control; toxic release inventories and
modifications to the PCB rules. In July 1997, the EPA issued final
rules that would tighten the National Ambient Air Quality Standards
(NAAQS) for ozone and particulate matter emissions. Utilities is
currently reviewing the rules to determine what impact they may have on
its operations.
In the fourth quarter of 1996, the EPA announced that it would
issue a notice requiring the 37 states in the Ozone Transport Assessment
Group (OTAG), which includes Iowa, to implement further controls on NOx.
In June 1997, OTAG made their final recommendations to the EPA. In
October 1997, the EPA followed these recommendations and excluded Iowa
from the requirement to reduce NOx emissions in the State with the
understanding that Iowa will work with Wisconsin in the development of
the SE Wisconsin attainment State Implementation Plan (SIP). Utilities
believes the potential cost of this effort will not have a material
adverse effect on its financial position or results of operations.
In 1995, the EPA published the Sulfur Dioxide Network Design Review
for Cedar Rapids, Iowa, which, based on the EPA's assumptions and worst-
case modeling method suggests that the Cedar Rapids area could be
classified as "nonattainment" for the NAAQS established for SO2. The
worst-case modeling study suggested that two of Utilities' generating
facilities contribute to the modeled exceedences and recommended that
additional monitors be located near Utilities' sources to assess actual
ambient air quality. As a result of exceedences at a relocated monitor,
the EPA issued a letter in March 1997 to the Iowa Governor's Office
directing the state to develop a plan of action within 120 days. The
Governor of Iowa then issued a letter to the EPA stating that a plan of
action would be in place with local industry to avoid the area being
declared nonattainment. In this regard, Utilities has entered into a
consent order with the Iowa Department of Natural Resources (IDNR). The
objective of this consent order is to establish the necessary
commitments which will maintain the area in attainment for SO2. Two
primary commitments were made by Utilities in this consent order: 1)
Utilities will limit SO2 emissions from the two noted generating
facilities located in Cedar Rapids, and 2) Utilities will install a new
stack at one of the facilities at a potential aggregate capital cost of
up to $4.5 million over the next two years. In September 1997, the EPA
provided comments to the IDNR on the consent order. In October 1997,
Utilities proposed certain modifications to the consent order in
response to the EPA comments. These proposed modifications include
revising the stack option such that the potential aggregate cost would
only be approximately $2.5 million over the next two years. The final
consent order is expected to be approved by both the IDNR and ultimately
by the EPA in either the fourth quarter of 1997 or the first quarter of
1998.
Pursuant to a routine internal review of operations, Utilities
determined that certain changes undertaken during the previous three
years at one of its power plants may have required a federal Prevention
of Significant Deterioration (PSD) permit. Utilities initiated
discussions with its regulators on the matter, resulting in the
submittal of a PSD permit application in February 1997. Utilities
expects to receive the PSD permit by the fourth quarter of 1997.
Utilities may be required to accept operational limits or to install
additional controls and may be subject to a penalty for not having
obtained the permit previously; however, Utilities believes that any
likely actions resulting from this matter will not have a material
adverse effect on its financial position or results of operations.
IES UTILITIES INC. CONSOLIDATED BALANCE SHEETS
September 30,
1997 December 31,
ASSETS (in thousands) (Unaudited) 1996
Property, plant and equipment:
Utility -
Plant in service -
Electric $ 2,045,422 $ 2,007,839
Gas 181,995 175,472
Other 131,302 126,850
2,358,719 2,310,161
Less - Accumulated depreciation 1,104,678 1,030,390
1,254,041 1,279,771
Leased nuclear fuel, net of amortization 37,968 34,725
Construction work in progress 61,932 43,719
1,353,941 1,358,215
Other, net of accumulated depreciation
and amortization of $1,615 and
$1,438, respectively 5,695 5,872
1,359,636 1,364,087
Current assets:
Cash and temporary cash investments 15,951 11,608
Accounts receivable -
Customer, less allowance for doubtful
accounts of $709 and $546, respectively 14,144 22,461
Other 8,907 11,270
Income tax refunds receivable 2,908 2,664
Production fuel, at average cost 10,801 13,323
Materials and supplies, at average cost 22,759 21,716
Adjustment clause balances 0 10,752
Regulatory assets 36,718 26,539
Prepayments and other 14,712 18,705
126,900 139,038
Investments:
Nuclear decommissioning trust funds 74,455 59,325
Cash surrender value of life insurance
policies 4,812 4,281
Other 78 313
79,345 63,919
Other assets:
Regulatory assets 191,476 201,129
Deferred charges and other 11,168 10,437
202,644 211,566
$ 1,768,525 $ 1,778,610
IES UTILITIES INC. CONSOLIDATED BALANCE SHEETS (CONTINUED)
September 30,
CAPITALIZATION AND LIABILITIES 1997 December 31,
(in thousands, except share amounts) (Unaudited) 1996
Capitalization:
Common stock - par value $2.50 per share -
authorized 24,000,000 shares; 13,370,788
shares outstanding $ 33,427 $ 33,427
Paid-in surplus 279,042 279,042
Retained earnings 236,028 231,337
Total common equity 548,497 543,806
Cumulative preferred stock - par value
$50 per share - authorized 466,406
shares; 366,406 shares outstanding 18,320 18,320
Long-term debt (excluding current portion) 651,781 517,334
1,218,598 1,079,460
Current liabilities:
Short-term borrowings 0 135,000
Capital lease obligations 13,294 15,125
Maturities and sinking funds 140 8,140
Accounts payable 37,269 76,287
Accrued interest 12,193 8,839
Accrued taxes 66,288 40,953
Accumulated refueling outage provision 7,970 1,316
Adjustment clause balances 782 0
Environmental liabilities 5,517 5,517
Other 15,335 17,114
158,788 308,291
Long-term liabilities:
Pension and other benefit obligations 31,600 25,826
Capital lease obligations 24,674 19,600
Environmental liabilities 37,844 40,299
Other 19,164 14,030
113,282 99,755
Deferred credits:
Accumulated deferred income taxes 245,361 256,634
Accumulated deferred investment
tax credits 32,496 34,470
277,857 291,104
Commitments and contingencies (Note 7)
$ 1,768,525 $ 1,778,610
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
<TABLE>
IES UTILITIES INC. CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<CAPTION>
For the Three For the Nine For the Twelve
Months Ended Months Ended Months Ended
September 30 September 30 September 30
1997 1996 1997 1996 1997 1996
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
Operating revenues:
Electric $ 184,676 $ 173,626 $ 459,653 $ 436,027 $ 597,899 $ 562,996
Gas 15,507 12,169 122,711 103,854 179,720 151,906
Other 5,528 4,375 19,369 13,296 25,915 17,143
205,711 190,170 601,733 553,177 803,534 732,045
Operating expenses:
Fuel for production 27,613 29,148 84,026 72,168 96,437 96,733
Purchased power 18,749 18,655 52,472 55,125 85,697 68,600
Gas purchased for resale 7,835 5,034 84,413 64,445 123,846 96,116
Other operating expenses 42,783 37,594 117,242 112,506 154,736 154,902
Maintenance 12,224 13,192 37,675 37,516 46,028 46,901
Depreciation and amortization 21,840 21,908 68,605 65,957 87,623 84,709
Taxes other than income taxes 10,956 11,386 34,563 34,996 43,170 43,054
142,000 136,917 478,996 442,713 637,537 591,015
Operating income 63,711 53,253 122,737 110,464 165,997 141,030
Interest expense and other:
Interest expense 13,371 11,466 38,446 33,346 48,813 44,375
Allowance for funds used during
construction -784 -761 -1,551 -2,141 -1,512 -2,904
Miscellaneous, net 588 6,230 1,915 5,090 2,117 5,597
13,175 16,935 38,810 36,295 49,418 47,068
Income before income taxes 50,536 36,318 83,927 74,169 116,579 93,962
Federal and state income taxes:
Current 21,124 15,132 45,520 33,487 47,362 42,513
Deferred 1,434 1,834 -6,996 1,296 2,116 527
Amortization of investment
tax credits -658 -661 -1,974 -1,984 -2,635 -2,658
21,900 16,305 36,550 32,799 46,843 40,382
Net income 28,636 20,013 47,377 41,370 69,736 53,580
Preferred dividend requirements 229 229 686 686 914 914
Net income available for
common stock $ 28,407 $ 19,784 $ 46,691 $ 40,684 $ 68,822 $ 52,666
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
</TABLE>
<TABLE>
IES UTILITIES INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<CAPTION>
For the Three For the Nine For the Twelve
Months Ended Months Ended Months Ended
September 30 September 30 September 30
1997 1996 1997 1996 1997 1996
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net income $ 28,636 $ 20,013 $ 47,377 $ 41,370 $ 69,736 $ 53,580
Adjustments to reconcile net income to
net cash flows from operating activities -
Depreciation and amortization 21,840 21,908 68,605 65,957 87,623 84,709
Amortization of principal under capital
lease obligations 3,559 4,945 10,668 14,195 12,964 19,108
Deferred taxes and investment tax credits 776 1,173 -8,970 -688 -519 -2,131
Refueling outage provision 2,464 1,831 6,654 6,751 -6,471 9,199
Amortization of other assets 4,225 2,041 9,406 7,191 11,987 9,845
Other -36 13 192 -24 496 657
Other changes in assets and liabilities -
Accounts receivable -1,564 5,466 10,680 6,440 -8,962 -1,146
Sale of utility accounts receivable 0 0 0 7,000 0 0
Production fuel, materials and supplies 2,847 -1,118 2,178 -190 3,019 3,560
Accounts payable -9,447 2,353 -36,339 -11,075 -12,379 3,832
Accrued taxes 30,933 21,259 25,091 8,301 5,556 -12,313
Provision for rate refunds 0 -43 0 -106 0 -12,966
Adjustment clause balances -3,533 -3,559 11,534 -3,898 1,532 -1,220
Gas in storage -5,413 -8,280 2,806 965 1,289 -1,193
Other -326 -2,816 7,399 1,607 13,117 -2,058
Net cash flows from operating
activities 74,961 65,186 157,281 143,796 178,988 151,463
Cash flows from financing activities:
Dividends declared on common stock -14,000 -12,000 -42,000 -34,000 -52,000 -44,000
Dividends declared on preferred stock -229 -229 -686 -686 -914 -914
Proceeds from issuance of long-term
debt 135,000 60,000 190,000 60,000 190,000 110,000
Reductions in long-term debt 0 -15,000 -63,140 -15,140 -63,140 -65,140
Net change in short-term borrowings -150,000 -47,345 -135,000 -27,658 -82,230 23,426
Principal payments under capital
lease obligations -3,740 -4,626 -9,405 -14,162 -14,351 -19,096
Other -711 -182 -821 -354 -887 -2,056
Net cash flows from financing
activities -33,680 -19,382 -61,052 -32,000 -23,522 2,220
Cash flows from investing activities:
Construction and acquisition
expenditures -
Utility -26,271 -39,701 -74,521 -97,084 -119,819 -133,524
Other 0 -2 -8 -344 -930 -902
Deferred energy efficiency
expenditures -920 -3,887 -8,450 -12,643 -12,664 -17,708
Nuclear decommissioning trust funds -1,502 -1,502 -4,506 -4,506 -6,008 -6,008
Other -18 272 -4,401 1,149 -1,196 3,137
Net cash flows from investing
activities -28,711 -44,820 -91,886 -113,428 -140,617 -155,005
Net increase (decrease) in cash and
temporary cash investments 12,570 984 4,343 -1,632 14,849 -1,322
Cash and temporary cash investments
at beginning of period 3,381 118 11,608 2,734 1,102 2,424
Cash and temporary cash investments
at end of period $ 15,951 $ 1,102 $ 15,951 $ 1,102 $ 15,951 $ 1,102
Supplemental cash flow information:
Cash paid during the period for -
Interest $ 9,073 $ 10,866 $ 33,215 $ 30,443 $ 44,842 $ 44,511
Income taxes $ 0 $ 3,921 $ 31,875 $ 35,489 $ 41,770 $ 51,691
Noncash investing and financing
activities -
Capital lease obligations incurred $ 13,789 $ 939 $ 13,912 $ 13,785 $ 14,408 $ 13,896
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
</TABLE>
IES UTILITIES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
Except as modified below, the IES Industries Inc. (Industries)
Notes to Consolidated Financial Statements are incorporated by reference
insofar as they relate to IES Utilities Inc. (Utilities). Industries'
Note 5 does not relate to Utilities and, therefore, is not incorporated
by reference.
(1) GENERAL:
The interim Consolidated Financial Statements have been prepared by
IES Utilities Inc. (Utilities) and its consolidated subsidiaries,
without audit, pursuant to the rules and regulations of the United
States Securities and Exchange Commission (SEC). Utilities' only wholly-
owned subsidiary is IES Ventures Inc. (Ventures), which is a holding
company for unregulated investments.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
OF THE RESULTS OF OPERATIONS AND FINANCIAL CONDITION
IES Industries Inc.'s Consolidated Financial Statements include the
accounts of IES Industries Inc. (Industries) and its consolidated
subsidiaries (collectively the Company). Industries' wholly-owned
subsidiaries are IES Utilities Inc. (Utilities) and IES Diversified Inc.
(Diversified). The information presented in this management's
discussion and analysis addresses the financial statements of Industries
and Utilities as presented in this joint filing. Information related to
Utilities also relates to Industries' Consolidated Financial Statements.
Information related to Diversified does not pertain to the discussion of
the financial condition and results of operations of Utilities. The
references to various Notes to Consolidated Financial Statements are all
to Industries' Notes to Consolidated Financial Statements.
COMPETITION
Electric energy generation, transmission, and distribution are in a
period of fundamental change in the manner in which customers obtain,
and energy suppliers provide, energy services. As legislative,
regulatory, economic and technological changes occur, electric utilities
are faced with increasing pressure to become more competitive. Such
competitive pressures could result in loss of customers and an
incurrence of stranded costs (i.e., the cost of assets rendered
unrecoverable as the result of competitive pricing). To the extent
stranded costs cannot be recovered from customers, they would be borne
by security holders.
The National Energy Policy Act of 1992 addresses several matters
designed to promote competition in the electric wholesale power
generation market. In 1996, the Federal Energy Regulatory Commission
(FERC) issued final rules (FERC Orders 888 and 889) requiring electric
utilities to open their transmission lines to other wholesale buyers and
sellers of electricity. The rules became effective in July 1996.
Utilities filed conforming pro-forma open access transmission tariffs
with the FERC which became effective in October 1995. In response to
FERC Order 888, Utilities filed its final pro-forma tariffs with FERC in
July 1996. The non-rate provisions of the tariffs were approved in
November 1996. FERC has not yet ruled on the rate provisions of the
tariffs. The geographic position of Utilities' transmission system
could provide revenue opportunities in the open access environment. The
Company cannot predict the long-term consequences of these rules on its
results of operations or financial condition.
FERC does not have jurisdiction over retail distribution, and thus
the final FERC rules do not provide for the recovery of stranded costs
resulting from retail competition. The various states retain
jurisdiction over the question of whether to permit retail competition,
the terms of such retail competition, and the recovery of any portion of
stranded costs that are ultimately determined by FERC and the states to
have resulted from retail competition.
The Iowa Utilities Board (IUB) initiated a Notice of Inquiry
(Docket No. NOI-95-1) in early 1995 on the subject of "Emerging
Competition in the Electric Utility Industry" to address all forms of
competition in the electric utility industry and to gather information
and perspectives on electric competition from all persons or entities
with an interest or stake in the issues. Included in the IUB's process
was the creation of an advisory panel, of which Utilities is a member.
The IUB staff's report in this docket was accepted by the IUB, finding,
in part, that there is no compelling reason to move quickly into
restructuring the electric utility industry in Iowa, based upon the
current level of relative prices. However, they are continuing the
analysis and debate on restructuring and retail competition in Iowa.
Recently, the IUB has taken several actions. On August 18, 1997,
the IUB issued an order that promulgated draft principles for an
independent system operator and invited public comment. On September
10, 1997, the IUB issued an order adopting an "Action Plan to Develop a
Competitive Model for the Electric Industry in Iowa." The IUB states in
this action plan that while "the IUB has not determined retail
competition in the electric industry is in the best interests of Iowa's
consumers...", the State of Iowa is likely to be affected by federal or
neighboring states' actions and so there is a need for the IUB to design
a model that suits Iowa's needs. The action plan is to be developed by
the IUB's staff, with outside assistance as needed, and with review and
comment by the IUB's advisory group. The priority concerns in the plan
are public interest issues (an Iowa-specific pilot project, customer
information and assessment, environmental impacts, public benefits and
transition costs/benefits) and transmission-related issues (transmission
and distribution system reliability and transmission system operations).
There is no timetable in the action plan. On October 2, 1997, the IUB
staff sent to the advisory group for written comment a set of proposed
guidelines for an Iowa-specific pilot project that would allow retail
access to a "subset of all customer classes."
As part of Utilities' strategy for the emerging and competitive
power markets, Utilities, Interstate Power Company (IPC) and Wisconsin
Power and Light Company (WP&L) (the utility subsidiary of WPL Holdings,
Inc. (WPLH)), and a number of other utilities have proposed the creation
of an independent system operator (ISO) for the companies' power
transmission grid. The companies would retain ownership and control of
the facilities, but the ISO would set rates for access and assure fair
treatment for all companies seeking access. The proposal requires
approval from state regulators and the FERC. Various other proposals
for ISO's have been made by other companies, and Utilities is monitoring
all such proposals. The Public Service Commission of Wisconsin (PSCW)
has conditioned the merger on the filing of a PSCW-approved ISO with
FERC.
Utilities is subject to the provisions of Statement of Financial
Accounting Standards No. 71, "Accounting for the Effects of Certain
Types of Regulation" (SFAS 71). If a portion of Utilities' operations
become no longer subject to the provisions of SFAS 71, as a result of
competitive restructurings or otherwise, a write-down of related
regulatory assets would be required, unless some form of transition cost
recovery is established by the appropriate regulatory body which would
meet the requirements under generally accepted accounting principles for
continued accounting as regulatory assets during such recovery period.
In addition, Utilities would be required to determine any impairment to
other assets and write-down such assets to their fair value. Utilities
believes that it still meets the requirements of SFAS 71.
The Company cannot predict the long-term consequences of these
competitive issues on its results of operations or financial condition.
The Company's strategy for dealing with these emerging issues includes
seeking growth opportunities, continuing to offer quality customer
service, ongoing cost reductions and productivity enhancements. The
major objective of these is to allow Utilities to better prepare for a
competitive, deregulated electric utility industry.
PROPOSED MERGER OF THE COMPANY
Industries, WPLH and IPC have entered into an Agreement and Plan of
Merger, as amended, dated November 10, 1995, which provides for the
combination of all three companies. The new company will be named
Interstate Energy Corporation (IEC).
WPLH is a holding company headquartered in Madison, Wisconsin, and
is the parent company of WP&L and Heartland Development Corporation
(HDC). WP&L supplies electric and gas service to approximately 385,000
and 150,000 customers, respectively, in south and central Wisconsin.
HDC and its principal subsidiaries are engaged in businesses in three
major areas: environmental engineering and consulting, affordable
housing and energy services. IPC, an operating public utility
headquartered in Dubuque, Iowa, supplies electric and gas service to
approximately 165,000 and 49,000 customers, respectively, in northeast
Iowa, northwest Illinois and southern Minnesota.
The proposed merger, which will be accounted for as a pooling of
interests, was approved by the respective shareowners on September 5,
1996. The merger is conditioned on the receipt of approvals of several
federal and state regulatory agencies. Updates to the status of these
approvals are as follows (for additional information regarding the
merger please refer to the Company's 1996 Annual Report on Form 10-K):
The FERC issued an order on January 15, 1997, finding no
substantial market-power concerns with the merger. Some limited issues
were set for hearings which began on April 23, 1997 and ended on May 2,
1997. On July 3, 1997, an administrative law judge issued a non-binding
recommendation that FERC approve the merger subject to the terms of a
stipulation agreement on competition issues entered into between the
companies and FERC trial staff. A final decision is expected in the
fourth quarter of 1997.
On May 7, 1997, the Illinois Commerce Commission (ICC) issued an
order approving the proposed merger.
On March 24, 1997, the Minnesota Public Utilities Commission (MPUC)
issued an order approving the merger without hearings, subject to a
number of technical conditions which the parties are willing to meet.
Included is a 4-year rate freeze for IPC's Minnesota customers.
On September 26, 1997, the IUB issued an order stating that it does
not disapprove of the proposed merger. The order included a number of
conditions, which the parties are willing to meet, including a 4-year
rate freeze.
On November 4, 1997, the PSCW issued an order approving the
proposed merger. The approval included a number of conditions, which
the parties are willing to meet, including a 4-year rate freeze.
The SEC comment period ended November 5, 1996. Final review will
commence following FERC approval.
The merger partners have submitted new information to the U.S.
Department of Justice (DOJ) pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act. The DOJ completed its impact review of the merger on
market power and all requirements of such review were satisfied.
The Nuclear Regulatory Commission (NRC) published its order in the
Federal Register on August 28, 1997, allowing principal ownership and
operations of the Duane Arnold Energy Center (DAEC) to transfer to
Interstate Energy Corporation.
The companies expect to receive all necessary regulatory approvals
relating to the merger by the end of 1997. Refer to Note 3(a) of the
Notes to Consolidated Financial Statements for a discussion of merger-
related retail and wholesale price freezes at Utilities.
RESULTS OF OPERATIONS OF THE COMPANY
The following discussion analyzes significant changes in the
components of net income and financial condition from the prior periods
for the Company.
Summary
The Company's net income increased $10.9 million, $9.4 million and
$13.4 million during the three, nine and twelve month periods,
respectively. Earnings per average common share increased $0.34, $0.29
and $0.41 for the respective periods. Utilities' net income available
for common stock increased $8.6 million, $6.0 million and $16.2 million
during the three, nine and twelve month periods, respectively.
Increased electric sales (excluding off-system sales) resulting from
continuing growth in Utilities' service territory and more favorable
weather conditions contributed to the increase in earnings for all
periods. In comparing the three, nine and twelve month periods with the
prior periods, the Company estimates that the weather impacted earnings
per share by approximately $0.15, $0.10 and $0.12, respectively. The
increase in earnings for all periods was also due to the takeover
defense costs (approximately $0.15 per share) that the company incurred
in the third quarter of 1996 and a lower effective tax rate. Partially
offsetting the increase for all periods were increased interest and
depreciation expenses. The nine and twelve month increases were also
partially offset by the recording of a $2.5 million loss on non-utility
investments at Utilities during the second quarter of 1997.
The Company's operating income increased $11.9 million, $13.6
million and $26.0 million during the three, nine and twelve month
periods, respectively, while Utilities' operating income increased $10.5
million, $12.3 million and $25.0 million during the same periods.
Electric Operations
Electric margins and Kwh sales for Utilities for the three months ended
September 30 were as follows:
Revenues and Costs Kwhs Sold
(In thousands) (In thousands)
1997 1996 1997 1996
Residential and rural $ 71,252 $ 63,594 734,577 667,458
General service 30,670 28,085 318,645 295,997
Large general service 72,525 68,809 1,490,581 1,432,420
Sales for resale and other 9,384 9,066 148,108 148,369
Total, excluding off-
system sales 183,831 169,554 2,691,911 2,544,244
Off-system sales 845 4,072 31,604 288,561
Total 184,676 173,626 2,723,515 2,832,805
Fuel for production
(excluding steam) 24,458 27,106
Purchased power 18,749 18,655
Margin $ 141,469 $ 127,865
Electric margins and Kwh sales for Utilities for the nine months ended
September 30 were as follows:
Revenues and Costs Kwhs Sold
(In thousands) (In thousands)
1997 1996 1997 1996
Residential and rural $ 174,245 $ 162,665 2,026,344 1,968,766
General service 77,687 72,622 920,048 886,972
Large general service 179,234 163,341 4,346,519 4,072,837
Sales for resale and other 24,469 23,080 420,995 435,340
Total, excluding off-
system sales 455,635 421,708 7,713,906 7,363,915
Off-system sales 4,018 14,319 151,597 929,784
Total 459,653 436,027 7,865,503 8,293,699
Fuel for production
(excluding steam) 72,507 65,734
Purchased power 52,472 55,125
Margin $ 334,674 $ 315,168
Electric margins and Kwh sales for Utilities for the twelve months ended
September 30 were as follows:
Revenues and Costs Kwhs Sold
(In thousands) (In thousands)
1997 1996 1997 1996
Residential and rural $ 224,380 $ 208,313 2,691,282 2,582,785
General service 103,261 96,340 1,264,192 1,215,829
Large general service 229,115 208,406 5,774,288 5,419,536
Sales for resale and other 31,954 30,058 573,434 581,446
Total, excluding off-
system sales 588,710 543,117 10,303,196 9,799,596
Off-system sales 9,189 19,879 453,110 1,285,161
Total 597,899 562,996 10,756,306 11,084,757
Fuel for production
(excluding steam) 81,381 88,728
Purchased power 85,697 68,600
Margin $ 430,821 $ 405,668
The electric margin increased $13.6 million, $19.5 million and
$25.2 million during the three, nine and twelve month periods,
respectively, primarily due to higher Kwh sales (excluding off-system
sales). The sales increases during all periods were due to continuing
sales growth in Utilities' service territory and more favorable weather
conditions. Revenues also increased significantly due to the recovery
of previously deferred expenditures for state mandated energy efficiency
programs pursuant to an IUB order (the majority of these recoveries are
also amortized to expense in other operating expenses). Lower purchased
power capacity costs also contributed to the increase in margin for all
periods. Under historically normal weather conditions, total Kwh sales
(excluding off-system sales) for the three, nine and twelve month
periods would have increased 1.5%, 3.4% and 4.0%, respectively, as
compared to actual increases of 5.8%, 4.8% and 5.1%.
Refer to Notes 3(a) and 3(b) of the Notes to Consolidated Financial
Statements for a discussion of merger-related retail and wholesale
electric price freezes at Utilities and the energy efficiency cost
recoveries, respectively.
Utilities' electric tariffs include energy adjustment clauses (EAC)
that are designed to currently recover the costs of fuel and the energy
portion of purchased power billings.
Gas Operations
Gas margins and dekatherm (Dth) sales for Utilities and Industrial
Energy Applications, Inc. (IEA), a wholly-owned subsidiary under
Diversified, for the three months ended September 30 were as follows:
Revenues and Costs Dths Sold
(In thousands) (In thousands)
1997 1996 1997 1996
Utilities -
Residential $ 8,802 $ 6,968 1,025 1,013
Commercial 4,259 3,031 758 711
Industrial 1,656 1,364 440 472
Transportation and
other 790 806 2,287 2,308
Total Utilities 15,507 12,169 4,510 4,504
IEA - 16,292 - 6,777
Total 15,507 28,461 4,510 11,281
Gas purchased for resale 7,795 20,841
Margin $ 7,712 $ 7,620
Gas margins and Dth sales for Utilities and IEA for the nine months
ended September 30 were as follows:
Revenues and Costs Dths Sold
(In thousands) (In thousands)
1997 1996 1997 1996
Utilities -
Residential $ 75,037 $ 64,754 11,140 11,894
Commercial 37,078 30,322 6,520 6,838
Industrial 7,926 6,027 1,874 1,885
Transportation and
other 2,670 2,751 7,507 7,613
Total Utilities 122,711 103,854 27,041 28,230
IEA 2,670 57,258 978 23,914
Total 125,381 161,112 28,019 52,144
Gas purchased for resale 88,136 120,091
Margin $ 37,245 $ 41,021
Gas margins and Dth sales for Utilities and IEA for the twelve months
ended September 30 were as follows:
Revenues and Costs Dths Sold
(In thousands) (In thousands)
1997 1996 1997 1996
Utilities -
Residential $ 107,991 $ 94,586 16,927 17,546
Commercial 53,722 44,061 10,005 10,075
Industrial 14,155 9,583 3,784 3,139
Transportation and
other 3,852 3,676 10,235 10,355
Total Utilities 179,720 151,906 40,951 41,115
IEA 58,527 72,760 20,118 32,241
Total 238,247 224,666 61,069 73,356
Gas purchased for resale 185,396 166,538
Margin $ 52,851 $ 58,128
Total gas margin increased or (decreased) $0.1 million, ($3.8)
million and ($5.3) million during the three, nine and twelve month
periods, respectively. The decreases during the nine and twelve month
periods were primarily due to lower gas margins at IEA. IEA's reported
Dth gas sales were significantly lower during each period as a result of
IEA contributing substantially all of its gas marketing business to a
joint venture, effective January 1, 1997, in exchange for a partial
interest in the joint venture. The investment in the joint venture is
accounted for under the equity accounting method and IEA's allocated
portion of gas revenues and gas expenses resulting from the joint
venture are recorded in "Miscellaneous, net" on Industries' Consolidated
Statements of Income.
Utilities' gas margin increased or (decreased) $0.5 million, ($1.1)
million and $0.1 million during the three, nine and twelve month
periods, respectively. The decrease in Utilities' margin during the
nine month period was primarily due to lower Dth sales resulting from
less favorable weather conditions in 1997. Under historically normal
weather conditions, Utilities' gas sales and transported volumes would
have increased or (decreased) 1.2%, (1.2%) and 1.0% during the three,
nine and twelve month periods, respectively, as compared to actual
increases or (decreases) of 0.1%, (4.2%) and (0.4%).
The contrasting relationship between the change in Utilities' gas
revenues and Dths sold during the nine and twelve month periods was
primarily due to higher per unit gas costs during the 1997 periods.
Utilities' gas tariffs include purchased gas adjustment clauses (PGA)
that are designed to currently recover the cost of gas sold.
Refer to Note 3(a) of the Notes to Consolidated Financial
Statements for a discussion of a merger-related gas price freeze at
Utilities.
Other Revenues The Company's other revenues increased $1.8 million,
$11.0 million and $19.9 million during the three, nine and twelve month
periods, respectively ($1.2 million, $6.1 million and $8.8 million at
Utilities). Steam revenues at Utilities increased during all periods
due to an increase in volumes sold resulting from the addition of a new
industrial customer and increased demand from existing customers.
Increased operating activities at IEA also contributed to the increases
during the nine and twelve month periods.
Operating Expenses The Company's other operating expenses increased or
(decreased) $3.5 million, $5.0 million and $2.0 million during the
three, nine and twelve month periods, respectively ($5.2 million, $4.7
and ($0.2) million at Utilities). The increase for all periods was
primarily due to increased amortization of previously deferred energy
efficiency expenditures at Utilities and increased international and
domestic business development activities at Diversified, partially
offset by lower operating expenses at Whiting. The nine and twelve
month increases were also due to the increased operating activities at
IEA, partially offset by decreased operating expenses at the DAEC,
Utilities' nuclear generating facility.
The Company's and Utilities' maintenance expenses increased or
(decreased) ($1.0) million, $0.2 million and ($0.9) million during the
three, nine and twelve month periods, respectively. The three month
decrease was primarily due to decreased maintenance activities at
Utilities' fossil-fueled generating stations. The twelve month decrease
was primarily due to lower maintenance expenses at the DAEC, partially
offset by increased maintenance activities on Utilities' transmission
and distribution facilities.
The Company's depreciation and amortization expense increased $0.2
million, $3.0 million and $5.0 million during the three, nine and twelve
month periods, respectively (($0.1) million, $2.6 million and $2.9
million at Utilities), primarily because of increases in utility plant
in service. The twelve month increase was also due to increases in
amortization costs of Whiting's oil and gas properties. Depreciation and
amortization expenses for all periods include a provision for
decommissioning the DAEC, which is collected through rates. The current
annual recovery level is $6.0 million.
During the first quarter of 1996, the Financial Accounting
Standards Board (FASB) issued an Exposure Draft on Accounting for
Liabilities Related to Closure and Removal of Long-Lived Assets which
deals with, among other issues, the accounting for decommissioning
costs. If current electric utility industry accounting practices for
such decommissioning are changed: (1) annual provisions for
decommissioning could increase and (2) the estimated cost for
decommissioning could be recorded as a liability, rather than as
accumulated depreciation, with recognition of an increase in the
recorded amount of the related DAEC plant. If such changes are
required, Utilities believes that there would not be an adverse effect
on its financial position or results of operations based on current rate
making practices.
Interest Expense and Other The Company's interest expense increased
$2.7 million, $7.3 million and $9.6 million during the three, nine and
twelve month periods, respectively ($1.9 million, $5.1 million and $4.4
million at Utilities), primarily because of increases in the average
amount of borrowings at Diversified and the amount of long-term debt
outstanding at Utilities. The three month increase was partially offset
by decreases in the average amount of short-term debt outstanding at
Utilities.
Miscellaneous, net for the Company reflects comparative increases
in income of $6.8 million, $2.7 million and $1.5 million during the
three, nine and twelve month periods, respectively ($5.6 million, $3.2
million and $3.5 million at Utilities). Approximately $7.5 million of
costs were incurred during the three month period ended September 30,
1996 relating to the successful defense of the hostile takeover attempt
mounted by MidAmerican Energy Company. The nine and twelve month
increases were partially offset by the recording of a $2.5 million loss
on non-utility investments at Utilities during the second quarter of
1997 and certain property write-downs.
Income Taxes The Company's income tax expense increased or (decreased)
$5.2 million, ($0.9) million and $3.1 million during the three, nine and
twelve month periods, respectively ($5.6 million, $3.8 million and $6.5
million at Utilities). Higher pre-tax income contributed to the three
and twelve month increases and partially offset the nine month decrease.
The impact of a tax deduction resulting from the contribution of 300,000
shares of the Company's investment in McLeodUSA Inc. (McLeod) to the IES
Charitable Foundation partially offset the three and twelve month
increases and contributed to the nine month decrease. Reserves recorded
during the first and second quarters of 1996 related to an Internal
Revenue Service (IRS) audit for tax years 1991-1993 also contributed to
the nine month decrease and partially offset the twelve month increase.
CONSOLIDATED BALANCE SHEETS
Pursuant to the provisions of SFAS No. 115, "Accounting for Certain
Investments in Debt and Equity Securities", the carrying value of the
McLeod investment was adjusted from a cost basis to estimated fair value
at September 30, 1997, based on the September 30 closing price, given
that the McLeod shares have become qualified for sale within a one year
period. The adjustment included an increase to "Investment in McLeodUSA
Inc." of $374 million, an increase to "Unrealized security gains (net of
taxes)" of $219 million and an increase to "Accumulated deferred income
taxes" of $155 million. (See note 5(a) for a further discussion of the
McLeod investment). The $50 million decrease in "Accounts payable" at
September 30, 1997, compared to December 31, 1996, was primarily due to
a decrease in natural gas payables caused by the seasonal nature of the
natural gas business and the accounting change for IEA's gas business
resulting from the formation of the joint venture.
LIQUIDITY AND CAPITAL RESOURCES
The Company's capital requirements are primarily attributable to
Utilities' construction programs, its debt maturities and the level of
Diversified's business opportunities. The Company's pretax ratio of
times interest earned was 2.90 and 2.93 for the twelve months ended
September 30, 1997 and September 30, 1996, respectively. Cash flows
from operating activities for the twelve months ended September 30, 1997
and September 30, 1996 were $199 million and $182 million, respectively.
The Company anticipates that future capital requirements will be
met by cash generated from operations and external financing. The level
of cash generated from operations is partially dependent upon economic
conditions, legislative activities, environmental matters and timely
regulatory recovery of Utilities' costs. See Notes 3 and 7 of the Notes
to Consolidated Financial Statements as well as the Company's 1996
Annual Report on Form 10-K.
Access to the long-term and short-term capital and credit markets,
and costs of external financing, are dependent on the Company's
creditworthiness. The Company's debt ratings are as follows:
Moody's Standard & Poor's
Utilities - Secured long-term debt A2 A+
- Unsecured long-term debt A3 A-
- Commercial paper P1 A1
Diversified - Commercial paper P2 A2
The Company's liquidity and capital resources will be affected by
environmental, regulatory and competitive issues, including the ultimate
disposition of remediation issues surrounding the Company's
environmental liabilities and the Clean Air Act as amended, as discussed
in Note 7 of the Notes to Consolidated Financial Statements and the
Company's 1996 Annual Report on Form 10-K, and emerging competition in
the electric utility industry as discussed in the Competition section.
Consistent with rate making principles of the IUB, management believes
that the costs incurred for the above matters will not have a material
adverse effect on the financial position or results of operations of the
Company.
At September 30, 1997, Utilities had approximately $65 million of
energy efficiency program costs recorded as regulatory assets. See Note
3(b) of the Notes to Consolidated Financial Statements for a discussion
of the recovery of these costs.
At September 30, 1997, the Company had an investment in McLeodUSA
Inc., a telecommunications company, valued at $403.0 million based on
the September 30 closing price. See Note 5(a) of the Notes to
Consolidated Financial Statements for further information concerning the
Company's investment in McLeodUSA, including recent accounting changes.
The Company has financial guarantees amounting to $18.8 million
outstanding at September 30, 1997, which are not reflected in the
consolidated financial statements. Such guarantees are generally issued
to support third-party borrowing arrangements and similar transactions.
The Company believes that any possible cash payments associated with
these agreements will not have a material adverse effect on the
financial position or results of operations of the Company.
The Company continues to explore domestic investment opportunities,
including investments in the domestic utility business. Such
investments could be significant.
At September 30, 1997, the Company had approximately $47.7 million
of investments in foreign entities (see Note 5(b) of the Notes to
Consolidated Financial Statements for a further discussion). In
addition, the Company also continues to explore other international
investment opportunities. Such investments may carry a higher level of
risk than the Company's traditional domestic utility investments or
Diversified's domestic investments. Such risks could include foreign
government actions, foreign economic and currency risks and others. The
Company may also incur business development expenses for potential
projects pursued by the Company that may never materialize. The Board
of Directors recently authorized the Company to pursue and propose
additional foreign investments, not to exceed $300 million, in Brazil,
which is undergoing a privatization of its electric companies. The
Company is striving to select international investments where these
risks are both understood and manageable.
The Resale Power Group of Iowa (RPGI), consisting of virtually all
of Utilities' wholesale customers, has notified Utilities that it will
not purchase its power supply from Utilities after December 31, 1998.
It is possible that certain RPGI customers will drop out of RPGI in
order to remain as Utilities' customers; to-date, three of the thirty
customers have signed contracts to remain with Utilities. All RPGI
customers will continue to purchase transmission services from Utilities
after December 31, 1998. While the Company cannot determine the outcome
of this issue at this time, the result will not have a material adverse
effect on its financial position or results of operations given 1)
Utilities' wholesale sales only account for approximately 5% of
Utilities' total electric sales, excluding off-system sales; 2)
Utilities currently has to supplement its generating capability with
purchased power to meet its sales load; 3) Utilities' annual electric
sales growth rate continues to be strong; and 4) Utilities will continue
to realize transmission revenues from such customers.
Under provisions of the Merger Agreement, there are restrictions on
the amount of common stock and long-term debt the Company can issue
pending the merger. The Company does not expect the restrictions to
have a material effect on its ability to meet its future capital
requirements.
CONSTRUCTION AND ACQUISITION PROGRAM
The Company's construction and acquisition program anticipates
expenditures of approximately $225 million for 1997, of which
approximately $147 million represents expenditures at Utilities and
approximately $78 million represents expenditures at Diversified. Of
the $147 million of Utilities' expenditures, 39% represents expenditures
for electric transmission and distribution facilities, 21% represents
electric generation expenditures, 21% represents information technology
expenditures and 5% represents gas expenditures. The remaining 14%
represents miscellaneous electric, steam and general expenditures.
Diversified's anticipated expenditures include approximately $75 million
for domestic and international energy-related construction and
acquisition expenditures. In addition to these anticipated
expenditures, the Board of Directors recently authorized the Company to
pursue and propose additional foreign investments, not to exceed $300
million, in Brazil, which is undergoing a privatization of its electric
companies. The Company had construction and acquisition expenditures of
approximately $119 million for the nine months ended September 30, 1997,
including approximately $74 million of utility expenditures and $45
million of non-utility expenditures.
The Company's levels of construction and acquisition expenditures
are projected to be $208 million in 1998, $212 million in 1999,
$182 million in 2000 and $198 million in 2001. It is estimated that
virtually all of Utilities' construction and acquisition expenditures
will be provided by cash from operating activities (after payment of
dividends) for the five-year period 1997-2001. Financing plans for
Diversified's construction and acquisition program will vary, depending
primarily on the level of energy-related acquisitions.
Capital expenditure and investment and financing plans are subject
to continual review and change. The capital expenditure and investment
programs may be revised significantly as a result of many considerations
including changes in economic conditions, variations in actual sales and
load growth compared to forecasts, requirements of environmental,
nuclear and other regulatory authorities, acquisition and business
combination opportunities, the availability of alternate energy and
purchased power sources, the ability to obtain adequate and timely rate
relief, escalations in construction costs and conservation and energy
efficiency programs.
Under provisions of the Merger Agreement, there are restrictions on
the amount of construction and acquisition expenditures the Company can
make pending the merger. The Company does not expect the restrictions
to have a material effect on its ability to implement its anticipated
construction and acquisition program.
LONG-TERM FINANCING
Other than Utilities' periodic sinking fund requirements, which
Utilities intends to meet by pledging additional property, the following
long-term debt will mature prior to December 31, 2001:
(in millions)
Utilities $ 184.0
Diversified's credit facility 191.3
Other subsidiaries' debt 10.9
$ 386.2
The Company intends to refinance the majority of the debt
maturities with long-term securities.
In August 1997, Utilities issued $135 million of 6-5/8% Senior
Debentures, due 2009. The proceeds from these debentures were used to
reduce Utilities' short-term borrowings.
Utilities repaid at maturity $8 million of 6-1/8% First Mortgage
Bonds during the second quarter of 1997.
Also in the second quarter of 1997, Utilities issued $55 million of
Collateral Trust Bonds, 6.875%, due 2007. Holders thereof may elect to
have their Collateral Trust Bonds redeemed, in whole but not in part, on
May 1, 2002, at 100% of the principal amount thereof, plus accrued
interest. The proceeds from the Collateral Trust Bonds were used to
refinance $15 million of Series L, 7.875% First Mortgage Bonds, $30
million of Series M, 7.625% First Mortgage Bonds and $10 million of
7.375% First Mortgage Bonds.
In 1993, Utilities entered into an Indenture of Mortgage and Deed
of Trust dated as of September 1, 1993 (New Mortgage). The New Mortgage
provides for, among other things, the issuance of Collateral Trust Bonds
upon the basis of First Mortgage Bonds being issued by Utilities. The
lien of the New Mortgage is subordinate to the lien of Utilities' first
mortgages until such time as all bonds issued under the first mortgages
have been retired and such mortgages satisfied. Accordingly, to the
extent that Utilities issues Collateral Trust Bonds on the basis of
First Mortgage Bonds, it must comply with the requirements for the
issuance of First Mortgage Bonds under Utilities' first mortgages.
Under the terms of the New Mortgage, Utilities has covenanted not to
issue any additional First Mortgage Bonds under its first mortgages
except to provide the basis for issuance of Collateral Trust Bonds.
The indentures pursuant to which Utilities issues First Mortgage
Bonds constitute direct first mortgage liens upon substantially all
tangible public utility property and contain covenants which restrict
the amount of additional bonds which may be issued. At September
30, 1997, such restrictions would have allowed Utilities to issue at
least $229 million of additional First Mortgage Bonds.
In order to provide an instrument for the issuance of unsecured
subordinated debt securities, Utilities entered into an Indenture dated
December 1, 1995 (Subordinated Indenture). The Subordinated Indenture
provides for, among other things, the issuance of unsecured subordinated
debt securities. Any debt securities issued under the Subordinated
Indenture are subordinate to all senior indebtedness of Utilities,
including First Mortgage Bonds, Collateral Trust Bonds and Senior
Debentures.
In order to provide an instrument for the issuance of senior
unsecured debt securities, Utilities entered into an Indenture dated as
of August 1, 1997 (Senior Unsecured Indenture). The Senior Unsecured
Indenture provides for, among other things, the issuance of senior
unsecured debt securities. Any debt securities issued under the Senior
Unsecured Indenture will rank on parity with other unsecured
unsubordinated debt of the Company.
Subsequent to the issuance of $135 million of Senior Debentures in
August 1997, Utilities does not have any remaining authority to issue
additional long-term debt under either the current FERC docket or the
current Securities and Exchange Commission shelf registrations.
Utilities plans to evaluate future needs for authority to issue
additional long-term debt.
In October 1997, Diversified entered into a 3-Year Credit Agreement
with various banking institutions which replaced its variable rate
credit facility. Refer to Note 6(a) of the Notes to Consolidated
Financial Statements for a further discussion of this agreement.
The Articles of Incorporation of Utilities authorize and limit the
aggregate amount of additional shares of Cumulative Preference Stock and
Cumulative Preferred Stock that may be issued. At September 30, 1997,
Utilities could have issued an additional 700,000 shares of Cumulative
Preference Stock and no additional shares of Cumulative Preferred Stock.
In addition, Industries had 5,000,000 shares of Cumulative Preferred
Stock, no par value, authorized for issuance, none of which were
outstanding at September 30, 1997.
The Company's capitalization ratios at September 30, 1997 were as
follows:
Long-term debt 49%
Preferred stock 1
Common equity 50
100%
The Company's capitalization ratios were significantly impacted
during the third quarter of 1997 by: 1) the issuance of $135 million of
6-5/8% Senior Debentures, and 2) the recognition of unrealized security
gains relating to the investment in McLeod which was recorded, net of
tax, directly in the common equity section on the balance sheet.
Under provisions of the Merger Agreement, there are restrictions on
the amount of common stock and long-term debt the Company can issue
pending the merger. The Company does not expect the restrictions to
have a material effect on its ability to meet its future capital
requirements.
SHORT-TERM FINANCING
For interim financing, Utilities is authorized by the FERC to
issue, through 1998, up to $200 million of short-term notes. In
addition to providing for ongoing working capital needs, this
availability of short-term financing provides Utilities flexibility in
the issuance of long-term securities. At September 30, 1997, Utilities
had no outstanding short-term borrowings.
Utilities has an agreement, which expires in 1999, with a financial
institution to sell, with limited recourse, an undivided fractional
interest of up to $65 million in its pool of utility accounts
receivable. At September 30, 1997, Utilities had sold $65 million under
the agreement.
In October 1997, Diversified entered into a 364-Day Credit
Agreement with various banking institutions which replaced its variable
rate credit facility. Refer to Note 6(b) of the Notes to Consolidated
Financial Statements for a further discussion of this agreement.
At September 30, 1997, the Company had bank lines of credit
aggregating $45.1 million. Utilities was using $11.1 million to support
certain pollution control obligations. Commitment fees are paid to
maintain these lines and there are no conditions which restrict the
unused lines of credit. From time to time, the Company may borrow from
banks and other financial institutions in lieu of commercial paper. The
Company has agreements with several financial institutions for such
borrowings. There are no commitments associated with these agreements
and there were no borrowings outstanding under these agreements at
September 30, 1997.
ENVIRONMENTAL MATTERS
Utilities has been named as a Potentially Responsible Party (PRP)
by various federal and state environmental agencies for 28 FMGP sites.
Utilities has recorded environmental liabilities related to the FMGP
sites of approximately $33 million (including $4.7 million as current
liabilities) at September 30, 1997. Regulatory assets of approximately
$33 million, which reflect the future recovery that is being provided
through Utilities' rates, have been recorded in the Consolidated Balance
Sheets. Considering the current rate treatment allowed by the IUB,
management believes that the clean-up costs incurred by Utilities for
these FMGP sites will not have a material adverse effect on its
financial position or results of operations. Refer to Note 7(a) of the
Notes to Consolidated Financial Statements for a further discussion,
including a discussion of a lawsuit filed by Utilities seeking recovery
of FMGP-related costs from its insurance carriers.
The Clean Air Act Amendments of 1990 (Act) requires emission
reductions of sulfur dioxide (SO2) and nitrogen oxides (NOx) to achieve
reductions of atmospheric chemicals believed to cause acid rain. The
acid rain program under the Act also governs SO2 allowances. The Act
and other federal laws also require the United States Environmental
Protection Agency (EPA) to study and regulate, if necessary, additional
issues that potentially affect the electric utility industry, including
emissions relating to NOx and mercury, toxic release inventories and
modifications to the PCB rules. In July 1997, the EPA issued new rules
pertaining to ozone and particulate matter emissions.
In 1995, the EPA published the Sulfur Dioxide Network Design Review
for Cedar Rapids, Iowa, which, based on the EPA's assumptions and worst-
case modeling method suggests that the Cedar Rapids area could be
classified as "nonattainment" for the National Ambient Air Quality
Standards established for SO2. The worst-case modeling study suggested
that two of Utilities' generating facilities contribute to the modeled
exceedences. Utilities entered into a consent order with the Iowa
Department of Natural Resources (IDNR) in the third quarter of 1997 on
this issue and has subsequently proposed certain modifications to the
consent order in response to comments provided by the EPA to the IDNR.
Pursuant to a routine review of operations, Utilities determined
that certain changes undertaken during the previous three years at one
of its power plants may have required a federal Prevention of
Significant Deterioration (PSD) permit. Refer to Note 7(b) of the Notes
to Consolidated Financial Statements for a further discussion of the
above mentioned air quality issues.
The National Energy Policy Act of 1992 requires owners of nuclear
power plants to pay a special assessment into a "Uranium Enrichment
Decontamination and Decommissioning Fund." Refer to Note 7(a) of the
Notes to Consolidated Financial Statements for a further discussion.
The Nuclear Waste Policy Act of 1982 (NWPA) assigned responsibility
to the U.S. Department of Energy (DOE) to establish a facility for the
ultimate disposition of high level waste and spent nuclear fuel and
authorized the DOE to enter into contracts with parties for the disposal
of such material beginning in January 1998. Utilities entered into such
a contract and has made the agreed payments to the Nuclear Waste Fund
(NWF) held by the U.S. Treasury, however, Utilities has since been
formally notified by the DOE that they anticipate being unable to begin
acceptance of spent nuclear fuel by January 31, 1998. Furthermore, the
DOE has experienced significant delays in its efforts and material
acceptance is now expected to occur no earlier than 2010 with the
possibility of further delay being likely. Utilities is evaluating and
pursuing multiple options including litigation and legislation to
protect its customers and its contractual and statutory rights that are
diminished by delays in the DOE program. The NWPA assigns
responsibility of interim storage of spent nuclear fuel to generators of
such spent nuclear fuel, such as Utilities. In accordance with this
responsibility, Utilities has been storing spent nuclear fuel on-site
since plant operations began in 1974 and has current on-site capability
to store spent fuel until 2001. Utilities is currently reviewing
options for expanding on-site storage capability. To provide assurance
that both the short and long term storage needs are satisfied, a
combination of expanding the capacity of the existing fuel pool and
construction of a dry cask modular facility may provide the best
solution. Analysis and discussion of this and other options continues.
The Low-Level Radioactive Waste Policy Amendments Act of 1985
mandated that each state must take responsibility for the storage of low-
level radioactive waste produced within its borders. The State of Iowa
is a member of the Midwest Interstate Low-Level Radioactive Waste
Compact Commission (Compact), which is responsible for any development
of new disposal capability within the member states of the Compact. In
June 1997, the Compact commissioners voted to discontinue work on a
proposed waste disposal facility in the State of Ohio because the
expected cost of such a facility was comparably higher than other
options currently available. At September 30, 1997, Utilities had
prepaid costs of approximately $1.1 million to the Compact. Utilities
expects to receive these funds back from the Compact by the end of the
year. The Compact is currently evaluating its plans for the future.
Utilities continues to ship the waste it produces to a disposal facility
located near Barnwell, South Carolina, thereby minimizing the amount of
low-level waste stored on-site. Utilities has on-site storage capability
that would be available in the event of disruptions of shipments to the
Barnwell facility.
Whiting is responsible for certain dismantlement and abandonment
costs related to various off-shore oil and gas properties. Refer to
Note 7(a) of the Notes to Consolidated Financial Statements for a
further discussion.
OTHER MATTERS
Year 2000 The Company utilizes software, embedded systems, and related
technologies throughout its businesses that will be affected by the date
change in the Year 2000. An internal project is currently under way to
determine the full scope, work plan and related costs to insure that its
systems continue to meet its customer and internal needs. The Company
has begun to incur expenses to resolve this issue. These expenses may
continue through the year 1999 and may be significant.
Labor Issues Utilities has six collective bargaining agreements,
covering approximately 54% of its workforce. None of the agreements
expires in 1997. Two of the agreements, covering less than 5% of
Utilities' workforce, will expire in 1998.
Financial Derivatives The Company has a policy that financial
derivatives are to be used only to mitigate business risks and not for
speculative purposes. Derivatives have been used by the Company on a
very limited basis. At September 30, 1997, the Company did not have any
material financial derivatives outstanding.
Accounting Pronouncements SFAS 128, Earnings Per Share, was issued by
the FASB in the first quarter of 1997. SFAS 128 deals with, among other
issues, the computation and disclosure of earnings per share amounts
when a company has stock options, warrants and/or convertible securities
outstanding. SFAS 128 is effective for periods ending after December
15, 1997, and is not expected to have a material impact upon adoption.
SFAS 130, Reporting Comprehensive Income, was issued by the FASB in
the second quarter of 1997. SFAS 130 establishes standards for
reporting of comprehensive income and its components in a full set of
general purpose financial statements. SFAS 130 will require the Company
to report a total for comprehensive income which includes, among other
items (a) unrealized holding gains / losses on securities classified as
available-for-sale under SFAS 115, (b) foreign currency translation
adjustments accounted for under SFAS 52, and (c) minimum pension
liability adjustments made pursuant to SFAS 87. SFAS 130 is effective
for periods beginning after December 15, 1997.
SFAS 131, Disclosures About Segments of an Enterprise and Related
Information, was issued by the FASB in the second quarter of 1997. SFAS
131 requires disclosures for each business segment that are similar to
those required under current standards with the addition of quarterly
disclosure requirements and a finer partitioning of geographic
disclosures. SFAS 131 is effective for periods beginning after December
15, 1997.
Joint Venture On June 11, 1997, WPLH announced the formation of a
joint venture with Cargill. The joint venture, to be named Cargill-IEC,
will be an energy-commodity trading company that will offer a range of
energy trading, marketing and risk management services to wholesale
electric customers. Power trading will begin under the joint venture
upon receipt of a FERC license which is anticipated during the fourth
quarter of 1997. Interstate Energy Corporation will ultimately be the
formal partner with Cargill in the new joint venture.
Inflation The Company does not expect the effects of inflation at
current levels to have a significant effect on its financial position or
results of operations.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
On April 30, 1996, Utilities filed suit, IES Utilities Inc. v. Home
Ins. Co., et al., No. 4-96-CV-10343 (S.D. Iowa filed Apr. 30, 1996),
against various insurers who had sold comprehensive general liability
policies to Iowa Southern Utilities Company (ISU) and Iowa Electric
Light and Power Company (IE) (Utilities was formed as the result of a
merger of ISU and IE). The suit seeks judicial determination of the
respective rights of the parties, a judgment that each defendant is
obligated under its respective insurance policies to pay in full all
sums that Utilities has become or may become obligated to pay in
connection with its defense against allegations of liability for
property damage at and around Former Manufactured Gas Plant (FMGP)
sites, and indemnification for all sums that it has or may become
obligated to pay for the investigation, mitigation, prevention,
remediation and monitoring of damage to property, including damage to
natural resources like groundwater, at and around the FMGP sites.
Settlement discussions are proceeding between Utilities and its
insurance carriers regarding the recovery of these FMGP-related costs.
Settlement has been reached with ten carriers and an agreement in
principle has been reached with four other carriers thus far. Amounts
received from insurance carriers are being deferred pending a
determination of the regulatory treatment of such recoveries.
Industries, Diversified, IES Energy Inc. (a wholly-owned subsidiary
of Diversified), MicroFuel Corporation (the Corporation) now known as
Ely, Inc. in which IES Energy has a 69.40% equity ownership, and other
parties have been sued in Linn County District Court in Cedar Rapids,
Iowa, by Allen C. Wiley. Mr. Wiley claims money damages on various tort
and contract theories arising out of the 1992 sale of the assets of the
Corporation, of which Mr. Wiley was a director and shareholder. All of
the defendants in Mr. Wiley's suit answered the complaint and denied
liability. Industries and Diversified were dismissed from the suit in a
motion for summary judgment. In addition, a grant of summary judgment
has reduced Mr. Wiley's claims against the remaining parties to breach
of fiduciary duty. A separate motion for summary judgment, which was
filed seeking dismissal of the remaining claims against the remaining
parties, was overruled on September 20, 1996, and the trial has been set
for May 1998. All of the defendants are vigorously contesting the
claims.
The Corporation commenced a separate suit to determine the fair
value of Mr. Wiley's shares under Iowa Code section 490. A decision was
issued on August 31, 1994, by the Linn County District Court ruling that
the value of Mr. Wiley's shares was $377,600 based on a 40 cent per
share valuation. The Corporation contended that the value of Mr. Wiley's
shares was 2.5 cents per share. The Decision was appealed to the Iowa
Supreme Court by the Corporation on a number of issues, including the
Corporation's position that the trial court erred as a matter of law in
discounting the testimony of the Corporation's expert witness. The Iowa
Supreme Court assigned the case to the Iowa Court of Appeals. On
February 2, 1996, the Iowa Court of Appeals reversed the District Court
ruling after determining the District Court erred in discounting the
expert testimony. The case was remanded back to the District Court for
consideration of the expert testimony, but with no additional evidence
taken. The District Court re-affirmed its original decision on August
28, 1996, and the Corporation has again appealed to the Iowa Supreme
Court.
On October 3, 1996, Lambda Energy Marketing Company, L. C. (Lambda)
filed a request with the IUB that the IUB initiate formal complaint
proceedings against Utilities. Lambda alleged that Utilities was
discriminating against it by refusing to enter into contracts with it
for remote displacement service and by favoring IEA, a subsidiary of the
Company, in such matters. On October 17, 1996, Utilities filed a
Response which denied the allegations, and alleged, inter alia, that
Lambda was unlawfully attempting to provide retail electrical services
in Utilities' exclusive service territory. On August 25, 1997, the IUB
issued its Final Decision and Order rejecting Lambda's complaint. On
October 10, 1997, the IUB issued its rehearing order which again
rejected Lambda's complaint.
On October 9, 1996, the Company filed a civil suit in the Iowa
District Court in and for Linn County against Lambda, Robert Latham,
Louie Ervin, and David Charles (three former employees of the Company
and/or its subsidiaries), collectively the "Defendants", alleging, inter
alia, violations of Iowa's trade secret act and interference with
existing and prospective business advantage. On November 1, 1996, the
Defendants filed their Answer and Counterclaims alleging, inter alia,
violation of Iowa competition law, tortious interference and commercial
disparagement. The Defendants therewith also filed a Third-Party
Petition against Utilities, IEA and Lee Liu, Chairman of the Board &
Chief Executive Officer of Industries and Utilities, alleging, inter
alia, tortious interference and commercial disparagement. On April 9,
1997, Utilities amended its suit to include Central Iowa Power
Cooperative (CIPCO) alleging that it, too, inter alia had violated
Iowa's trade secret act, and had tortiously interfered with existing and
prospective business advantage. Utilities is in the process of
dismissing CIPCO from the suit.
Reference is made to Notes 3 and 7 of Industries' Notes to
Consolidated Financial Statements for a discussion of Utilities' rate
proceedings and the Company's environmental matters, respectively, and
Item 2. Management's Discussion and Analysis of the Results of
Operations and Financial Condition - Environmental Matters.
Item 2. Changes in the Rights of the Company's Security Holders.
Under provisions of the 3-Year and 364-Day Credit Agreements
recently entered into by Diversified, declaration of common dividends by
Industries could be restricted prior to its pending merger if certain
provisions are not met. The Company does not anticipate such provisions
will restrict any future dividend payments.
Item 3. Default Upon Senior Securities.
None.
Item 4. Results of Votes of Security Holders.
None.
Item 5. Other Information.
(a) IES Utilities Inc. has calculated their ratio of earnings to fixed
charges pursuant to Item 503 of Regulation S-K of the Securities
and Exchange Commission as follows:
For the twelve months ended:
September 30, 1997 3.19
December 31, 1996 3.23
December 31, 1995 3.04
December 31, 1994 3.18
December 31, 1993 3.41
December 31, 1992 2.49
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits -
4(a) Fifth Supplemental Indenture, dated as of April 1,
1997, supplementing Utilities' Indenture of Mortgage and Deed
of Trust, dated September 1, 1993. (Filed as Exhibit 4(a) to
Industries' Form 10-Q for the quarter ended March 31, 1997
(File No. 1-9187)).
4(b) Sixty-third Supplemental Indenture, dated as of
April 1, 1997, supplementing Utilities' Indenture of Mortgage
and Deed of Trust, dated August 1, 1940. (Filed as Exhibit
4(b) to Industries' Form 10-Q for the quarter ended March 31,
1997 (File No. 1-9187)).
4(c) Commercial Paper Dealer Agreement, dated as of
November 9, 1994, between IES Diversified Inc. and Citicorp
Securities, Inc. (Filed as Exhibit 4(c) to Industries' Form 10-
Q for the quarter ended March 31, 1997 (File No. 1-9187)).
4(d) First Amendment, dated as of March 24, 1997, to the
Commercial Paper Dealer Agreement, dated as of November 9,
1994, between IES Diversified Inc. and Citicorp Securities,
Inc. (Filed as Exhibit 4(d) to Industries' Form 10-Q for the
quarter ended March 31, 1997 (File No. 1-9187)).
4(e) Indenture (For Senior Unsecured Debt Securities),
dated as of August 1, 1997, between Utilities and The First
National Bank of Chicago, as Trustee. (Filed as Exhibit 4(j)
to Utilities' Registration Statement, File No. 333-32097).
*4(f) 3-Year Credit Agreement dated as of October 20, 1997
among IES Diversified Inc. as Borrower, certain banks, First
Chicago Capital Markets, Inc. as Syndication Agent and
Citibank, N.A. as Agent.
*4(g) 364-Day Credit Agreement dated as of October 20,
1997 among IES Diversified Inc. as Borrower, certain banks,
First Chicago Capital Markets, Inc. as Syndication Agent and
Citibank, N.A. as Agent.
10(a) Receivables Purchase and Sale Agreement dated as of
June 30, 1989, as Amended and Restated as of February 28,
1997, among IES Utilities Inc. (as Seller) and CIESCO L.P. (as
the Investor) and Citicorp North America, Inc. (as Agent).
(Filed as Exhibit 10(a) to Industries' Form 10-Q for the
quarter ended March 31, 1997 (File No. 1-9187)).
10(b) Director Retirement Plan. (Filed as Exhibit 10(b)
to Industries' Form 10-Q for the quarter ended June 30, 1997
(File No. 1-9187)).
*10(c) IES Industries Inc. Grantor Trust for Director Retirement
Plan.
*10(d) IES Industries Inc. Grantor Trust for Deferred
Compensation Agreements.
*10(e) IES Industries Inc. Grantor Trust for Supplemental
Retirement Agreements.
*10(f) IES Utilities Inc. Grantor Trust for Deferred Compensation
Agreements.
*10(g) IES Utilities Inc. Grantor Trust for Supplemental
Retirement Agreements.
*12 Ratio of Earnings to Fixed Charges (IES Utilities Inc.)
*27(a) Financial Data Schedule (IES Industries Inc.)
*27(b) Financial Data Schedule (IES Utilities Inc.)
* Exhibits designated by an asterisk are filed herewith.
(b) Reports on Form 8-K -
IES Industries Inc.
Items Reported Financial Statements Date of Report
5 None October 30, 1997
IES Utilities Inc.
Items Reported Financial Statements Date of Report
5 None July 29, 1997
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 INDUSTRIES INC.
(Registrant)
Date: November 12, 1997 By /s/ Stephen W. Southwick
(Signature)
Stephen W. Southwick
Vice President, General Counsel &
Secretary
By /s/ John E. Ebright
(Signature)
John E. Ebright
Controller & Chief Accounting Officer
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.
(Registrant)
Date: November 12, 1997 By /s/ Stephen W. Southwick
(Signature)
Stephen W. Southwick
Vice President, General Counsel &
Secretary
By /s/ John E. Ebright
(Signature)
John E. Ebright
Controller & Chief Accounting Officer
EXHIBIT 4(f)
[Conformed Copy]
$450,000,000
3-YEAR
CREDIT AGREEMENT
Dated as of October 20, 1997
Among
IES DIVERSIFIED INC.
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
FIRST CHICAGO CAPITAL MARKETS, INC.
as Syndication Agent
and
CITIBANK, N.A.
as Agent
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
....................................................................... 2
SECTION 1.01. Certain Defined Terms. ................................ 2
SECTION 1.02. Computation of Time Periods ........................... 21
SECTION 1.03. Computations of Outstandings .......................... 21
SECTION 1.04. Accounting Terms ...................................... 21
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
....................................................................... 22
SECTION 2.01. The A Advances ........................................ 22
SECTION 2.02. Making the A Advances. ................................ 22
SECTION 2.03. The B Advances ........................................ 24
SECTION 2.04. Fees .................................................. 28
SECTION 2.05. Reduction of the Commitments .......................... 28
SECTION 2.06. Repayment of A Advances ............................... 28
SECTION 2.07. Interest on A Advances ................................ 28
SECTION 2.08. Additional Interest on Eurodollar Rate Advances ....... 29
SECTION 2.09. Interest Rate Determination ........................... 30
SECTION 2.10. Voluntary Conversion of A Advances .................... 33
SECTION 2.11. Optional Prepayments of Advances ...................... 33
SECTION 2.12. Mandatory Prepayments ................................. 33
SECTION 2.13. Increased Costs ....................................... 34
SECTION 2.14. Illegality ............................................ 35
SECTION 2.15. Payments and Computations ............................. 36
SECTION 2.16. Taxes ................................................. 38
SECTION 2.17. Sharing of Payments, Etc. ............................. 40
SECTION 2.18. Extension of Termination Date ......................... 40
ARTICLE III
CONDITIONS OF LENDING
....................................................................... 41
SECTION 3.01. Conditions Precedent to Closing ....................... 41
SECTION 3.02. Conditions Precedent to Each A Borrowing .............. 44
SECTION 3.03. Conditions Precedent to Each B Borrowing .............. 45
SECTION 3.04. Reliance on Certificates .............................. 46
ARTICLE IV
REPRESENTATIONS AND WARRANTIES ....................................... 46
SECTION 4.01. Representations and Warranties of the Borrower ........ 46
ARTICLE V
COVENANTS OF THE BORROWER ............................................ 49
SECTION 5.01. Affirmative Covenants ................................. 49
SECTION 5.02. Negative Covenants .................................... 54
ARTICLE VI
EVENTS OF DEFAULT .................................................... 60
SECTION 6.01. Events of Default ..................................... 60
ARTICLE VII
THE AGENT ............................................................ 63
SECTION 7.01. Authorization and Action .............................. 63
SECTION 7.02. Agent's Reliance, Etc ................................. 64
SECTION 7.03. Citibank, N.A. and Affiliates ......................... 64
SECTION 7.04. Lender Credit Decision ................................ 65
SECTION 7.05. Indemnification ....................................... 65
SECTION 7.06. Successor Agent ....................................... 65
ARTICLE VIII
MISCELLANEOUS ........................................................ 66
SECTION 8.01. Amendments, Etc ....................................... 66
SECTION 8.02. Notices, Etc .......................................... 67
SECTION 8.03. No Waiver; Remedies ................................... 67
SECTION 8.04. Costs, Expenses, Taxes and Indemnification ............ 67
SECTION 8.05. Right of Set-off ...................................... 69
SECTION 8.06. Binding Effect ........................................ 70
SECTION 8.07. Assignments and Participations ........................ 70
SECTION 8.08. Confidentiality ....................................... 74
SECTION 8.09. WAIVER OF JURY TRIAL .................................. 75
SECTION 8.10. Consent ............................................... 75
SECTION 8.11. Governing Law ......................................... 75
SECTION 8.12. Relation of the Parties; No Beneficiary ............... 76
SECTION 8.13. Execution in Counterparts ............................. 76
3-YEAR
CREDIT AGREEMENT
Dated as of October 20, 1997
THIS 3-YEAR CREDIT AGREEMENT (this "Agreement") is made by and
among:
(i) IES DIVERSIFIED INC., an Iowa corporation (the
"Borrower", which term shall include, following
consummation of the Merger referred to herein, Heartland
Development Corporation as successor by merger), all of
whose common stock is owned on the date hereof by the
Parent (as hereinafter defined),
(ii) the banks (the "Banks") listed on the signature
pages hereof and the other Lenders (as hereinafter
defined) from time to time party hereto, and
(iii) CITIBANK, N.A., as agent (the "Agent") for the
Lenders hereunder.
PRELIMINARY STATEMENTS
(1) The Borrower, certain banks (the "Existing Banks") and
Citibank, N.A., as agent for the Existing Banks, are parties to
that certain Third Amended and Restated Credit Agreement, dated as
of November 20, 1996 (the "Existing Facility").
(2) The Borrower desires to replace the Existing Facility
with the revolving credit facilities created under this Agreement
and the Other Credit Agreement referred to herein.
(3) The Banks and the Agent are prepared to provide such
facilities on the terms and conditions set forth herein, including
but not limited to the condition that the Parent provide the
Support Agreement described herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"A Advance" means an advance by a Lender to the Borrower
as part of an A Borrowing and refers to an Adjusted CD Rate
Advance, a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of
simultaneous A Advances of the same Type, having the same
Interest Period and ratably made or Converted on the same day
by each of the Lenders pursuant to Section 2.02 or 2.10, as
the case may be. All Advances of the same Type, having the
same Interest Period and made or Converted on the same day
shall be deemed a single Borrowing hereunder until repaid or
next Converted.
"A Note" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of
Exhibit 1.01A-1 hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the A Advances
made by such Lender.
"Adjusted CD Rate" means, for any Interest Period for
each Adjusted CD Rate Advance made as part of the same A
Borrowing, an interest rate per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the
rate of interest determined by the Agent to be the
average (rounded upward to the nearest whole multiple of
1/100 of 1% per annum, if such average is not such a
multiple) of the consensus bid rate determined by each of
the Reference Banks for the bid rates per annum at 9:00
a.m. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period of
New York certificate of deposit dealers of recognized
standing selected by such Reference Bank for the purchase
at face value of certificates of deposit of such
Reference Bank in an amount substantially equal to such
Reference Bank's Adjusted CD Rate Advance made as part of
such A Borrowing and maturing on the last day of such
Interest Period, by (ii) a percentage equal to 100% minus
the Adjusted CD Rate Reserve Percentage (as defined
below) for such Interest Period, plus
(b) the Assessment Rate (as defined below) for such
Interest Period.
The "Adjusted CD Rate Reserve Percentage" for the Interest
Period for each Adjusted CD Rate Advance comprising part of
the same A Borrowing means the reserve percentage applicable
on the first day of such Interest Period, as determined by the
Agent, under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including,
but not limited to, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with deposits exceeding one
billion dollars with respect to liabilities consisting of or
including (among other liabilities) U.S. dollar nonpersonal
time deposits in the United States with a maturity equal to
such Interest Period. The "Assessment Rate" for the Interest
Period for each Adjusted CD Rate Advance comprising part of
the same A Borrowing means the annual assessment rate
estimated by the Agent on the first day of such Interest
Period for determining the then current annual assessment
payable by the Agent to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar
deposits of the Agent in the United States. The Adjusted CD
Rate for the Interest Period for each Adjusted CD Rate Advance
comprising part of the same A Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks on the first
day of such Interest Period, subject, however, to the
provisions of Section 2.09.
"Adjusted CD Rate Advance" means an A Advance which bears
interest as provided in Section 2.07(b).
"Advance" means an A Advance or a B Advance.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not
limited to all directors and officers of such Person),
controlled by, or under direct or indirect common control with
such Person. A Person shall be deemed to control another
entity if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and
policies of such entity, whether through the ownership of
voting securities, by contract, or otherwise.
"Alternate Base Rate" means a fluctuating interest rate
per annum as shall be in effect from time to time which rate
per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by
Citibank, N.A. in New York, New York, from time to time,
as Citibank, N.A.'s base rate; and
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
Each change in the Alternate Base Rate shall take effect
concurrently with any change in such base rate or the Federal
Funds Rate.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case
of an Adjusted CD Rate Advance and such Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Advance and,
in the case of a B Advance, the office of such Lender notified
by such Lender to the Agent as its Applicable Lending Office
with respect to such B Advance.
"Applicable Margin" means, for a Eurodollar Rate Advance,
an Adjusted CD Rate Advance or Base Rate Advance, the number
of basis points set forth below in the columns identified as
Level 1, Level 2, Level 3 or Level 4 below, opposite the rate
applicable to such Advance.
Level 1 Level 2 Level 3 Level 4
S&P A- or better BBB+ BBB below BBB*
and and and or
Moody's A3 or better Baa1 Baa2 below
Baa2*
Basis Points Per Annum
Eurodollar Rate 25.0 25.0 30.0 70.0
Adjusted CD Rate 37.5 37.5 42.5 82.5
Base Rate Advance 0 0 0 50.0
* or unrated
The Applicable Margin will be based upon the Level
corresponding to the Reference Ratings at the time of
determination. Any change in the Applicable Margin resulting
from a change in the Reference Ratings shall be effective as
of the Borrowing date following the date on which the
applicable rating agency announces the applicable change in
ratings. If the Merger shall not have been consummated on or
before December 31, 1997, the Applicable Margins shown for
Level 2 shall apply to Level 1; those shown for Level 3 shall
apply to Level 2 and those shown for Level 4 shall apply to
Level 3. If the Merger is thereafter consummated, the
Applicable Margins for the various Levels shall revert to
those shown above, effective from the date of such
consummation. Any change in the Applicable Margin resulting
from the application of either or both of the two preceding
sentences shall be effective immediately.
"Applicable Rate" means:
(i) in the case of each Base Rate Advance, a rate per
annum equal at all times to the sum of the Alternate Base Rate
in effect from time to time plus the Applicable Margin in
effect from time to time;
(ii) in the case of each Adjusted CD Rate Advance
comprising part of the same A Borrowing, a rate per annum
during each Interest Period equal at all times to the sum of
the Adjusted CD Rate for such Interest Period plus the
Applicable Margin in effect from time to time during such
Interest Period; and
(iii) in the case of each Eurodollar Rate Advance
comprising part of the same A Borrowing, a rate per annum
during each Interest Period equal at all times to the sum of
the Eurodollar Rate for such Interest Period plus the
Applicable Margin in effect from time to time during such
Interest Period.
"Available Commitment" means, for each Lender at any time
on any day, the unused portion of such Lender's Commitment,
computed after giving effect to all Extensions of Credit made
or to be made on such day, the application of proceeds
therefrom and all prepayments and repayments of Advances made
on such day.
"Available Commitments" means the aggregate of the
Lenders' Available Commitments hereunder.
"B Advance" means an advance by a Lender to the Borrower
as part of a B Borrowing resulting from the auction bidding
procedure described in Section 2.03.
"B Borrowing" means a borrowing consisting of
simultaneous B Advances from each of the Lenders whose offer
to make one or more B Advances as part of such borrowing has
been accepted by the Borrower under the auction bidding
procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of
Exhibit 1.01A-2 hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from a B Advance(s)
made by such Lender.
"B Reduction" has the meaning assigned to that term in
Section 2.01.
"Base Rate Advance" means an A Advance that bears
interest as provided in Section 2.07(a).
"Borrowing" means an A Borrowing or a B Borrowing. Any A
Borrowing consisting of A Advances of a particular Type may be
referred to as being an A Borrowing of such "Type".
"Business Day" means a day of the year on which banks are
not required or authorized to close in New York City, Chicago,
Illinois or Cedar Rapids, Iowa, and, if the applicable
Business Day relates to any Eurodollar Rate Advance, on which
dealings are carried on in the London interbank market.
"CD Lending Office" means, with respect to any Lender,
the office or affiliate of such Lender specified as its "CD
Lending Office" opposite its name on Schedule I hereto or in
the Lender Assignment pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending
Office) or such other office or affiliate of such Lender as
such Lender may from time to time specify to the Borrower and
the Agent.
"Capitalized Lease Obligations" means obligations to pay
rent or other amounts under any lease of (or other arrangement
conveying the right to use) real and/or personal property
which obligation is required to be classified and accounted
for as a capital lease on a balance sheet prepared in
accordance with generally accepted accounting principles, and
for purposes hereof the amount of such obligations shall be
the capitalized amount determined in accordance with such
principles.
"Cash and Cash Equivalents" means, with respect to any
Person, the aggregate amount of the following, to the extent
owned by such Person free and clear of all Liens, encumbrances
and rights of others and not subject to any judicial,
regulatory or other legal constraint: (i) cash on hand;
(ii) Dollar demand deposits maintained in the United States
with any commercial bank and Dollar time deposits maintained
in the United States with, or certificates of deposit having a
maturity of one year or less issued by, any commercial bank
which has its head office in the United States and which has a
combined capital and surplus of at least $100,000,000;
(iii) eurodollar time deposits maintained in the United States
with, or eurodollar certificates of deposit having a maturity
of one year or less issued by, any commercial bank having
outstanding unsecured indebtedness that is rated (on the date
of acquisition thereof) A- or better by S&P or A3 or better by
Moody's (or an equivalent rating by another
nationally-recognized credit rating agency of similar standing
if neither of such corporations is then in the business of
rating unsecured bank indebtedness); (iv) direct obligations
of, or unconditionally guaranteed by, the United States and
having a maturity of one year or less; (v) commercial paper
rated (on the date of acquisition thereof) A-1 or P-1 or
better by S&P or Moody's, respectively (or an equivalent
rating by another nationally-recognized credit rating agency
of similar standing if neither of such corporations is then in
the business of rating commercial paper), and having a
maturity of one year or less; (vi) obligations with any Lender
or any other commercial bank in respect of the repurchase of
obligations of the type described in clause (iv), above,
provided that such repurchase obligations shall be fully
secured by obligations of the type described in said clause
(iv) and the possession of such obligations shall be
transferred to, and segregated from other obligations owned
by, such Lender or such other commercial bank; and
(vii) preferred stock of any Person that is rated A- or better
by S&P or A3 or better by Moody's (or an equivalent rating by
another nationally-recognized credit rating agency of similar
standing if neither of such corporations is then in the
business of rating preferred stock of entities engaged in such
businesses).
"Closing" means the day upon which each of the
applicable conditions precedent enumerated in Section 3.01
shall be fulfilled to the satisfaction of, or waived with the
consent of, the Lenders, the Agent and the Borrower. All
transactions contemplated by the Closing shall take place on a
Business Day on or prior to October 20, 1997, at the offices
of King & Spalding, 1185 Avenue of the Americas, New York, New
York 10036, at 10:00 a.m., or such later Business Day as the
parties hereto may mutually agree.
"Commitment" means, for each Lender, the obligation of
such Lender to make Advances to the Borrower in an amount no
greater than the amount set forth on Schedule I hereto or, if
such Lender has entered into one or more Lender Assignments,
set forth for such Lender in the Register maintained by the
Agent pursuant to Section 8.07(c), in each such case as such
amount may be reduced from time to time pursuant to Section
2.05. "Commitments" means the total of the Lenders'
Commitments hereunder. The Commitments shall in no event
exceed $450,000,000.
"Consolidated Capital" means, with respect to any Person,
at any date of determination, the sum of (c) Consolidated Debt
of such Person, (d) consolidated equity of the common
stockholders of such Person and its Consolidated Subsidiaries,
(e) consolidated equity of the preference stockholders of such
Person and its Consolidated Subsidiaries and (f) consolidated
equity of the preferred stockholders of such Person and its
Consolidated Subsidiaries, in each case determined at such
date in accordance with generally accepted accounting
principles.
"Consolidated Debt" means, with respect to any Person, at
any date of determination, the aggregate Debt of such Person
and its Consolidated Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting
principles, but shall not include Nonrecourse Debt of any
Subsidiary of the Borrower.
"Consolidated Subsidiary" means, with respect to any
Person, any Subsidiary of such Person whose accounts are or
are required to be consolidated with the accounts of such
Person in accordance with generally accepted accounting
principles.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of another
Type, or to the selection of a new, or the renewal of the
same, Interest Period for Advances, as the case may be,
pursuant to Section 2.09 or 2.10.
"Debt" means, for any Person, any and all indebtedness,
liabilities and other monetary obligations of such Person
(i) for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments, (ii) to pay the deferred
purchase price of property or services (except trade accounts
payable arising and repaid in the ordinary course of
business), (iii) Capitalized Lease Obligations, (iv) under
reimbursement or similar agreements with respect to letters of
credit (other than trade letters of credit) issued to support
indebtedness or obligations of such Person or of others of the
kinds referred to in clauses (i) through (iii), above, and
clause (v), below, (v) reasonably quantifiable obligations
under direct guaranties or indemnities, or under support
agreements, in respect of, and reasonably quantifiable
obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in
respect of, or to assure an obligee against failure to make
payment in respect of, indebtedness or obligations of others
of the kinds referred to in clauses (i) through (iv), above,
and (vi) in respect of unfunded vested benefits under Plans.
In determining Debt for any Person, there shall be included
accrued interest on the principal amount thereof to the extent
such interest has accrued for more than six months.
"Default Rate" means (i) with respect to the unpaid
principal of or interest on any Advance, the greater of (A) 2%
per annum above the Applicable Rate in effect from time to
time for such Advance and (B) 2% per annum above the
Applicable Rate in effect from time to time for Base Rate
Advances and (ii) with respect to any other unpaid amount
hereunder, 2% per annum above the Applicable Rate in effect
from time to time for Base Rate Advances.
"Direct Subsidiary" means, with respect to any Person,
any Subsidiary directly owned by such Person.
"Dollars" and the sign "$" each means lawful money of the
United States.
"Domestic Lending Office" means, with respect to any
Lender, the office or affiliate of such Lender specified as
its "Domestic Lending Office" opposite its name on Schedule I
hereto or in the Lender Assignment pursuant to which it became
a Lender, or such other office or affiliate of such Lender as
such Lender may from time to time specify in writing to the
Borrower and the Agent.
"Eligible Assignee" means (a) a commercial bank or trust
company organized under the laws of the United States, or any
State thereof; (b) a commercial bank organized under the laws
of any other country that is a member of the OECD, or a
political subdivision of any such country, provided that such
bank is acting through a branch or agency located in the
United States; (c) the central bank of any country that is a
member of the OECD; and (d) any other commercial bank or other
financial institution engaged generally in the business of
extending credit or purchasing debt instruments; provided,
however, that (A) any such Person shall also (i) have
outstanding unsecured indebtedness that is rated A- or better
by S&P or A3 or better by Moody's (or an equivalent rating by
another nationally-recognized credit rating agency of similar
standing if neither of such corporations is then in the
business of rating unsecured indebtedness of entities engaged
in such businesses) or (ii) have combined capital and surplus
(as established in its most recent report of condition to its
primary regulator) of not less than $250,000,000 (or its
equivalent in foreign currency), (B) any Person described in
clause (b), (c), or (d), above, shall, on the date on which it
is to become a Lender hereunder, (i) be entitled to receive
payments hereunder without deduction or withholding of any
United States Federal income taxes (as contemplated by Section
2.16) and (ii) not be incurring any losses, costs or expenses
of the type for which such Person could demand payment under
Section 2.13, and (C) any Person described in clauses (b), (c)
and (d), above, shall, in addition, be reasonably acceptable
to the Agent and the Borrower.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means, with respect to any Person, any
trade or business (whether or not incorporated) which is a
member of a group of which such Person is a member and which
is under common control within the meaning of the regulations
under Section 414(b) or (c) of the Internal Revenue Code of
1986, as amended from time to time.
"ERISA Event" means (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, unless the
30-day notice requirement with respect thereto has been waived
by the PBGC; (ii) the provision by the administrator of any
Plan of notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of
ERISA); (iii) the cessation of operations at a facility in the
circumstances described in Section 4062(e) of ERISA; (iv) the
withdrawal by the Borrower or an ERISA Affiliate of the
Borrower from a Multiple Employer Plan during a plan year for
which it was a "substantial employer", as defined in Section
4001(a)(2) of ERISA; (v) the failure by the Borrower or an
ERISA Affiliate of the Borrower to make a payment to a Plan
required under Section 302(f)(1) of ERISA, which failure
results in the imposition of a lien for failure to make
required payments; (vi) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant to
Section 307 of ERISA; or (vii) the institution by the PBGC of
proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition which might
reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office or affiliate of such Lender specified as
its "Eurodollar Lending Office" opposite its name on Schedule
I hereto or in the Lender Assignment pursuant to which it
became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office or affiliate of
such Lender as such Lender may from time to time specify in
writing to the Borrower and the Agent.
"Eurodollar Rate" means, for each Interest Period for
each Eurodollar Rate Advance made as part of the same A
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00
a.m. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance made as part of such
A Borrowing and for a period equal to such Interest Period.
The Eurodollar Rate for the Interest Period for each
Eurodollar Rate Advance made as part of the same A Borrowing
shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Section 2.09.
"Eurodollar Rate Advance" means an A Advance that bears
interest as provided in Section 2.07(c).
"Eurodollar Reserve Percentage" of any Lender for each
Interest Period for each Eurodollar Rate Advance means the
reserve percentage applicable to such Lender during such
Interest Period (or if more than one such percentage shall be
so applicable, the daily average of such percentages for those
days in such Interest Period during which any such percentage
shall be so applicable) under Regulation D or other
regulations issued from time to time by the Board of Governors
of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other
marginal reserve requirement) then applicable to such Lender
with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to such
Interest Period.
"Events of Default" has the meaning assigned to that term
in Section 6.01.
"Existing Banks" has the meaning assigned to that term in
Preliminary Statement (1) to this Agreement.
"Existing Facility" has the meaning assigned to that term
in Preliminary Statement (1) to this Agreement.
"Extension of Credit" means the making of a Borrowing.
For purposes of this Agreement, a Conversion shall not
constitute an Extension of Credit.
"Facility Fee" means a fee which shall be payable on the
aggregate amount of the Commitments, irrespective of usage, to
each Lender pro rata on the amount of their respective
Commitments at the rate (expressed in basis points per annum)
set forth below in the columns identified as Level 1, Level 2,
Level 3 or Level 4, based on the Reference Ratings.
Level 1 Level 2 Level 3 Level 4
S&P A- or better BBB+ BBB below BBB*
and and and or
Moody's A3 or better Baa1 Baa2 below
Baa2*
Basis Points 15.0 20.0 25.0 30.0
* or unrated
The Facility Fee will be based upon the Level corresponding to
the Reference Ratings at the time of determination. Any
change in the Facility Fee resulting from a change in the
Reference Ratings shall be effective as of the date on which
the applicable rating agency announces the applicable change
in ratings. If the Merger shall not have been consummated on
or before December 31, 1997, the Facility Fee rate shown for
Level 2 shall apply to Level 1; that shown for Level 3 shall
apply to Level 2 and that shown for Level 4 shall apply to
Level 3. If the Merger is thereafter consummated, the
Facility Fee rates for the various Levels shall revert to
those shown above, effective from the date of such
consummation. Any change in the Applicable Margin resulting
from the application of either or both of the two preceding
sentences shall be effective immediately.
"FDIC Assessment Rate" mean, during an Interest Period
for CD Rate Advances comprising a single Borrowing, the annual
rate (rounded upwards, if necessary, to the next 1/100 of 1%)
most recently estimated by the Agent as the then current
annual assessment rate payable by the Agent to the Federal
Deposit Insurance Corporation (or any successor) for insurance
by such Corporation (or such successor) of time deposits made
in U.S. dollars at the Agent's domestic offices. The FDIC
Assessment Rate shall be the same for all CD Rate Advances
comprising the same Borrowing and shall be adjusted
automatically on and as of he effective date of each change in
any such rate.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period
to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" means that certain letter agreement, dated
October 17, 1997, among the Borrower, the Agent and Citicorp
Securities, Inc.
"Governmental Approval" means any authorization, consent,
approval, license, franchise, lease, ruling, tariff, rate,
permit, certificate, exemption of, or filing or registration
with, any governmental authority or other legal or regulatory
body.
"Hazardous Substance" means any waste, substance, or
material identified as hazardous, dangerous or toxic by any
office, agency, department, commission, board, bureau, or
instrumentality of the United States or of the State or
locality in which the same is located having or exercising
jurisdiction over such waste, substance or material.
"IES Utilities" means IES Utilities Inc., an Iowa
corporation, all of whose common stock is owned on the date
hereof by the Parent.
"Information Memorandum" means the Confidential
Information Memorandum relating to this Agreement and the
Other Credit Agreement delivered (or to be delivered) by
Citicorp Securities, Inc. and First Chicago Capital Markets,
Inc. at the direction of the Borrower and the Parent to the
Lenders.
"Interest Period" means, for each A Advance made as part
of the same A Borrowing, the period commencing on the date of
such A Advance or the date of the Conversion of any A Advance
into such an A Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such
Interest Period shall be 30, 60, 90 or 180 days in the case of
an Adjusted CD Rate Advance, and 1, 2, 3 or 6 months in the
case of a Eurodollar Rate Advance, in each case as the
Borrower may, upon notice received by the Agent not later than
12:00 noon (New York City time) (a) on the third Business Day
prior to the first day of such Interest Period in the case of
a Eurodollar Rate Advance and (b) on the second Business Day
prior to the first day of such Interest Period in the case of
an Adjusted CD Rate Advance, select; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date
for A Advances comprising part of the same A Borrowing
shall be of the same duration; and
(iii) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day,
provided, in the case of any Interest Period for a
Eurodollar Rate Advance, that if such extension would
cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day.
"IPC" means Interstate Power Company, a Delaware
corporation.
"Lenders" means the Banks listed on the signature pages
hereof and each Eligible Assignee that shall become a party
hereto pursuant to Section 8.07.
"Lender Assignment" means an assignment and acceptance
agreement entered into by a Lender and an Eligible Assignee,
and accepted by the Agent, in substantially the form of
Exhibit 8.07.
"Lien" has the meaning assigned to that term in Section
5.02(a).
"Loan Documents" means this Agreement, the Notes, the
Support Agreement, the Fee Letter and all other agreements,
instruments and documents now or hereafter executed and/or
delivered pursuant hereto or thereto.
"Majority Lenders" means, on any date of determination,
Lenders that, collectively, on such date (i) hold at least 66-
2/3% of the then aggregate unpaid principal amount of the A
Advances owing to Lenders and (ii) if no A Advances are then
outstanding, have Percentages in the aggregate of at least 66-
2/3%. Any determination of those Lenders constituting the
Majority Lenders shall be made by the Agent and shall be
conclusive and binding on all parties absent manifest error.
"McLeodUSA Stock" means the 8,977,600 shares of common
stock of McLeodUSA Incorporated, a Delaware corporation, held
by the Borrower as of the date of this Agreement.
"Merger" means the merger of the Parent with and into
WPL and the merger of the Borrower with and into Heartland
Development Corporation, pursuant to an Agreement and Plan of
Merger, dated as of November 10, 1995, as amended (the "Merger
Agreement"), with the result that the Borrower, IES Utilities,
Wisconsin Power and IPC will be wholly-owned Subsidiaries of
WPL, which will be renamed Interstate Energy Corporation.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, which is subject to
Title IV of ERISA and to which the Borrower or any ERISA
Affiliate of the Borrower is making or accruing an obligation
to make contributions, or has within any of the preceding five
plan years made or accrued an obligation to make
contributions, such plan being maintained pursuant to one or
more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which is subject to
Title IV of ERISA and which (i) is maintained for employees of
the Borrower or an ERISA Affiliate of the Borrower and at
least one Person other than the Borrower and its ERISA
Affiliates or (ii) was so maintained and in respect of which
the Borrower or an ERISA Affiliate of the Borrower could have
liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Nonrecourse Debt" means any Debt that finances the
acquisition, development, ownership or operation of an asset
in respect of which the Person to which such Debt is owed has
no recourse whatsoever to the Borrower or any of its
Affiliates other than:
(i) recourse to the named obligor with respect to such
Debt (the "Debtor") for amounts limited to the cash
flow or net cash flow (other than historic cash flow
or historic cash flow) from the asset; and
(ii) recourse to the Debtor for the purpose
only of enabling amounts to be claimed in respect of
such Debt in an enforcement of any security interest
or lien given by the Debtor over the asset or the
income, cash flow or other proceeds deriving from
the asset (or given by any shareholder or the like
in the Debtor over its shares or like interest in
the capital of the Debtor) to secure the Debt, but
only if:
(A) the extent of the recourse to the Debtor is
limited solely to the amount of any recoveries
made on any such enforcement; and
(B) the Person to which such Debt is owed is not
entitled, by virtue of any right or claim
arising out of or in connection with such Debt,
to commence proceedings for the winding up or
dissolution of the Debtor or to appoint or
procure the appointment of any receiver,
trustee, or similar Person or officer in
respect of the Debtor or any of its assets
(other than the assets subject to the security
interest or lien referred to above); and
(iii) recourse to the Debtor generally or indirectly
to any Affiliate of the Debtor, under any form of
assurance, undertaking or support, which recourse is
limited to a claim for damages (other than
liquidated damages and damages required to be
calculated in a specified way) for a breach of an
obligation (other than a payment obligation or an
obligation to comply or to procure compliance by
another with any financial ratios or other tests of
financial condition) by the Person against which
such recourse is available.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning assigned to that
term in Section 2.02(a).
"Notice of B Borrowing" has the meaning assigned to that
term in Section 2.03(a).
"Notice of Conversion" has the meaning assigned to that
term in Section 2.10.
"OECD" means the Organization for Economic Cooperation
and Development.
"Other Credit Agreement" means the 364-Day Credit
Agreement, dated as of October 20, 1997, among the Borrower,
the lenders from time to time parties thereto and Citibank,
N.A., as agent for such lenders.
"Parent" means IES Industries Inc., an Iowa corporation,
or any successor by merger thereto (including, upon
consummation of the Merger, WPL) that succeeds to the
obligations of IES Industries Inc. under, and in accordance
with Section 2(e) of, the Support Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor entity) established under ERISA.
"Percentage" means, for any Lender on any date of
determination, the percentage obtained by dividing such
Lender's Commitment on such day by the total of the
Commitments on such date, and multiplying the quotient so
obtained by 100%.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint
stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended from time to time.
"Reference Banks" means Citibank, N.A. and The First
National Bank of Chicago, and any additional or substitute
Lenders as may be selected from time to time to act as
Reference Banks hereunder by the Agent, the Majority Lenders
and the Borrower.
"Reference Ratings" means the ratings assigned by S&P and
Moody's to: (i) prior to the consummation of the Merger, the
Reference Securities of IES Utilities and (ii) following the
consummation of the Merger, the lower of the two most highly
rated Reference Securities. For purposes of the foregoing
clause (i) and clause (ii), if the ratings assigned to such
Reference Security by S&P and Moody's, respectively are not
comparable (i.e. a "split rating"), the lower of such two
ratings shall control.
"Reference Securities" means, for each of IES Utilities,
Wisconsin Power and IPC, such Utility's first mortgage bonds
or other most senior secured non-credit enhanced long-term
debt.
"Register" has the meaning assigned to that term in
Section 8.07(c).
"S&P" means Standard & Poor's Corporation or any
successor thereto.
"Senior Financial Officer" means the President, the Chief
Executive Officer, the Chief Financial Officer or the
Treasurer of the Borrower.
"Significant Subsidiary" means any Subsidiary of the
Borrower that, on a consolidated basis with any of its
Subsidiaries as of any date of determination, accounts for
more than 20% of the consolidated assets (valued at book
value) of the Borrower and its Subsidiaries.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which is subject to
Title IV of ERISA and which (i) is maintained for employees of
the Borrower or an ERISA Affiliate of the Borrower and no
Person other than the Borrower and its ERISA Affiliates, or
(ii) was so maintained and in respect of which the Borrower or
an ERISA Affiliate of the Borrower could have liability under
Section 4069 of ERISA in the event such plan has been or were
to be terminated.
"Subsidiary" means, with respect to any Person, any
corporation or unincorporated entity of which more than 50% of
the outstanding capital stock (or comparable interest) having
ordinary voting power (irrespective of whether at the time
capital stock (or comparable interest) of any other class or
classes of such corporation or entity shall or might have
voting power upon the occurrence of any contingency) is at the
time directly or indirectly owned by said Person (whether
directly or through one of more other Subsidiaries). In the
case of an unincorporated entity, a Person shall be deemed to
have more than 50% of interests having ordinary voting power
only if such Person's vote in respect of such interests
comprises more than 50% of the total voting power of all such
interests in the unincorporated entity.
"Support Agreement" means the 3-Year Support Agreement,
dated as of the date hereof, between the Parent and the
Borrower, substantially in the form of Exhibit 1.01B.
"Termination Date" means the earliest to occur of
(i) October 20, 2000 or such later date to which the
Termination Date is extended in accordance with Section 2.18,
(ii) September 1, 1998, if the Merger shall not have been
consummated on or prior to May 10, 1998 and (iii) the date of
termination or reduction in whole of the Commitments pursuant
to Section 2.05 or 6.01.
"Type" has the meaning assigned to that term (i) in the
definition of "A Advance" when used in such context and
(ii) in the definition of "Borrowing" when used in such
context.
"Unmatured Default" means an event that, with the giving
of notice or lapse of time, or both, would constitute an Event
of Default.
"Utilities" means, collectively, IES Utilities, Wisconsin
Power and IPC.
"Wisconsin Power" means Wisconsin Power & Light Company,
a Wisconsin corporation.
"WPL" means WPL Holdings, Inc., a Wisconsin
Corporation.
SECTION 1.02. Computation of Time Periods. Unless otherwise
indicated, each reference in this Agreement to a specific time of
day is a reference to New York City time. In the computation of
periods of time under this Agreement, any period of a specified
number of days or months shall be computed by including the first
day or month occurring during such period and excluding the last
such day or month. In the case of a period of time "from" a
specified date "to" or "until" a later specified date, the word
"from" means "from and including" and the words "to" and "until"
each means "to but excluding".
SECTION 1.03. Computations of Outstandings. Whenever
reference is made in this Agreement to the "principal amount
outstanding" on any date under this Agreement, such reference shall
refer to the aggregate principal amount of all Advances outstanding
on such date after giving effect to all Extensions of Credit to be
made on such date and the application of the proceeds thereof.
SECTION 1.04. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles ("GAAP") consistent with
those applied in the preparation of the financial statements
referred to in Section 5(d) of the Support Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. (a) Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make
A Advances to the Borrower from time to time on any Business Day
during the period from the Closing until the Termination Date in an
aggregate outstanding amount not to exceed at any time such
Lender's Available Commitment, provided that the aggregate amount
of the Commitments of the Lenders shall be deemed used from time to
time to the extent of the aggregate amount of the B Advances then
outstanding and such deemed use of the aggregate amount of the
Commitments shall be applied to the Lenders ratably according to
their respective Percentages (such deemed use of the aggregate
amount of the Commitments being a "B Reduction"). Each A Borrowing
shall be in an aggregate amount not less than $5,000,000 (or, if
lower, the amount of the Available Commitments) or an integral
multiple of $1,000,000 in excess thereof and shall consist of A
Advances of the same Type made on the same day by the Lenders
ratably according to their respective Percentages. Within the
limits of each Lender's Commitment and as hereinabove and
hereinafter provided, the Borrower may request Extensions of Credit
hereunder, and repay or prepay Advances pursuant to Section 2.11
and utilize the resulting increase in the Available Commitments for
further Extensions of Credit in accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or
receive any Extensions of Credit that would cause the principal
amount outstanding hereunder to exceed the Commitments.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing
shall be made on notice, given not later than 12:00 noon (i) on the
third Business Day prior to the date of the proposed A Borrowing,
in the case of an A Borrowing comprised of Eurodollar Rate
Advances, (ii) on the second Business Day prior to the date of the
proposed A Borrowing, in the case of an A Borrowing comprised of
Adjusted CD Rate Advances, and (iii) on the date of the proposed A
Borrowing, in the case of an A Borrowing comprised of Base Rate
Advances, in each case by the Borrower to the Agent, which shall
give to each Lender prompt notice thereof by telecopier, telex or
cable. Each such notice of an A Borrowing (a "Notice of A
Borrowing") shall be by telecopier, telex or cable, in
substantially the form of Exhibit 2.02(a) hereto, specifying
therein the requested (A) date of such A Borrowing, (B) Type of A
Advances comprising such A Borrowing, (C) aggregate amount of such
A Borrowing and (D) in the case of an A Borrowing comprised of
Adjusted CD Rate Advances or Eurodollar Rate Advances, initial
Interest Period for each such A Advance. Each Lender shall, before
(x) 12:00 noon on the date of such A Borrowing, in the case of an A
Borrowing comprised of Eurodollar Rate Advances or Adjusted CD Rate
Advances, and (y) 1:00 p.m. on the date of such A Borrowing, in the
case of an A Borrowing comprised of Base Rate Advances, make
available for the account of its Applicable Lending Office to the
Agent at its address referred to in Section 8.02, in same day
funds, such Lender's ratable portion of such A Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will
promptly make such funds available to the Borrower at the Agent's
aforesaid address.
(b) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrower. In the case of any A Borrowing which the
related Notice of A Borrowing specifies is to be comprised of
Adjusted CD Rate Advances or Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of A Borrowing for such A
Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the A Advance to be made by
such Lender as part of such A Borrowing when such A Advance, as a
result of such failure, is not made on such date.
(c) Unless the Agent shall have received notice from a Lender
prior to the date of any A Borrowing that such Lender will not make
available to the Agent such Lender's A Advance as part of such A
Borrowing, the Agent may assume that such Lender has made such A
Advance available to the Agent on the date of such A Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent
that such Lender shall not have so made such A Advance available to
the Agent, such Lender and the Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount, together
with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid
to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to A Advances comprising such A Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lender's A Advance as
part of such A Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the A Advance to be
made by it as part of any A Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its A Advance
on the date of such A Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the A Advance to be
made by such other Lender on the date of any A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally
agrees that the Borrower may request B Borrowings under this
Section 2.03 from time to time on any Business Day during the
period from the date hereof until the date occurring 30 days prior
to the Termination Date in the manner, and subject to the terms and
conditions, set forth below. The rates of interest offered by the
Lenders and accepted by the Borrower for each B Borrowing shall be
fixed rates per annum.
(i) The Borrower may request a B Borrowing under this
Section 2.03 by delivering to the Agent, by telecopier, telex
or cable, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit 2.03(a)(i)
hereto, specifying the date and aggregate amount of the
proposed B Borrowing, the maturity date for repayment of each
B Advance to be made as part of such B Borrowing (which
maturity date may not be earlier than the date occurring 30
days after the date of such B Borrowing nor later than the
earlier to occur of the then scheduled Termination Date and
the date occurring 180 days following the date of such B
Borrowing), the interest payment date or dates relating
thereto, and any other terms to be applicable to such B
Borrowing, not later than 3:00 p.m. at least one Business Day
prior to the date of the proposed B Borrowing. The Agent
shall in turn promptly notify each Lender of each request for
a B Borrowing received by it from the Borrower by sending such
Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more B
Advances to the Borrower as part of such proposed B Borrowing
at a rate or rates of interest specified by such Lender in its
sole discretion, by notifying the Agent (which shall give
prompt notice thereof to the Borrower), before 11:00 a.m., on
the date of such proposed B Borrowing, of the minimum amount
and maximum amount of each B Advance which such Lender would
be willing to make as part of such proposed B Borrowing (which
amounts may, subject to the limitation contained in subsection
(d), below, exceed such Lender's Commitment), the rate or
rates of interest therefor and such Lender's Applicable
Lending Office with respect to such B Advance; provided that
if the Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the
Borrower of such offer before 10:30 a.m. on the date on which
notice of such election is to be given to the Agent by the
other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Agent before 11:00 a.m.
on the date on which notice of such election is to be given to
the Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any B Advance as part of
such B Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated
to make any B Advance as part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, before 12:00 noon
on the date of such proposed B Borrowing either
(x) cancel such B Borrowing by either giving the
Agent notice to that effect or failing to accept one or
more offers as provided in clause (y), below, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii), above, in
its sole discretion, by giving written notice to the
Agent of the amount of each B Advance (which amount shall
be equal to or greater than the minimum amount, and equal
to or less than the maximum amount, notified to the
Borrower by the Agent on behalf of such Lender for such B
Advance pursuant to paragraph (ii), above) to be made by
each Lender as part of such B Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph
(ii), above, by giving the Agent written notice to that
effect.
(iv) If the Borrower cancels such B Borrowing pursuant to
paragraph (iii)(x), above, the Agent shall give prompt notice
thereof to the Lenders and such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y),
above, such acceptance shall be irrevocable and binding on the
Borrower and, subject to the satisfaction of the applicable
conditions set forth in Article III, on such Lender or
Lenders. The Borrower shall indemnify each such Lender
against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill, on or before the date
specified in the notice provided pursuant to paragraph
(vii)(A), below, the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the
B Advance to be made by such Lender as part of such B
Borrowing when such B Advance, as a result of such failure, is
not made on such date.
(vi) Unless the Agent shall have received notice from a
Lender prior to the date of any B Borrowing in which such
Lender is required to participate that such Lender will not
make available to the Agent such Lender's B Advance as part of
such B Borrowing, the Agent may assume that such Lender has
made such B Advance available to the Agent on the date of such
B Borrowing in accordance with paragraph (vii), below, and the
Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to
the extent that such Lender shall not have so made such B
Advance available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each
day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the Borrower, the interest rate applicable
to such B Advance and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall
constitute such Lender's B Advance as part of such B Borrowing
for purposes of this Agreement.
(vii) If the Borrower accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph
(iii)(y), above, the Agent shall in turn promptly notify
(A) each Lender that has made an offer as described in
paragraph (ii), above, of the date and aggregate amount of
such B Borrowing and whether or not any offer or offers made
by such Lender pursuant to paragraph (ii), above, have been
accepted by the Borrower, (B) each Lender that is to make a B
Advance as part of such B Borrowing of the amount of the B
Advance to be made by such Lender as part of such B Borrowing
and (C) each Lender that is to make a B Advance as part of
such B Borrowing, upon receipt, that the Agent has received
forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to
make a B Advance as part of such B Borrowing shall, before
1:00 p.m. on the date of such B Borrowing specified in the
notice received from the Agent pursuant to clause (A) of the
preceding sentence or any later time when such Lender shall
have received notice from the Agent pursuant to clause (C) of
the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent at its address referred
to in Section 8.02 such Lender's B Advance, in same day funds.
Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Agent of such funds, the
Agent will promptly make such funds available to the Borrower
at the Agent's aforesaid address. Promptly after each B
Borrowing the Agent will notify each Lender of the amount of
the B Borrowing, the consequent B Reduction and the dates upon
which such B Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount not less
than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this
Section 2.03, repay pursuant to subsection (e), below, prepay
pursuant to Section 2.11 and reborrow under this Section 2.03,
provided that a B Borrowing shall not be made within three Business
Days of the date of any other B Borrowing.
(d) In no event shall the Borrower be entitled to request or
receive any B Advances that would cause the principal amount
outstanding hereunder to exceed the Commitments.
(e) The Borrower shall repay to the Agent for the account of
each Lender which has made a B Advance, or each other holder of a B
Note, on the maturity date of each B Advance (such maturity date
being that specified by the Borrower for repayment of such B
Advance in the related Notice of B Borrowing delivered pursuant to
subsection (a)(i), above, and provided in the B Note evidencing
such B Advance), the then unpaid principal amount of such B
Advance.
(f) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance to the
date the principal amount of such B Advance is repaid in full, at
the rate of interest for such B Advance specified by the Lender
making such B Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii), above, payable on the interest
payment date or dates specified by the Borrower for such B Advance
in the related Notice of B Borrowing delivered pursuant to
subsection (a)(i), above, as provided in the B Note evidencing such
B Advance, provided, however, that upon the occurrence and during
the continuance of any Event of Default, each B Advance shall bear
interest at the Default Rate.
(g) The indebtedness of the Borrower resulting from each B
Advance made to the Borrower as part of a B Borrowing shall be
evidenced by a separate B Note of the Borrower payable to the order
of the Lender making such B Advance.
SECTION 2.04. Fees. (a) The Borrower agrees to pay to the
Agent for the account of each Lender the Facility Fee from the date
hereof, in the case of each Bank, and from the effective date
specified in the Lender Assignment pursuant to which it became a
Lender, in the case of each other Lender, until the Termination
Date, payable quarterly in arrears on the last day of each March,
June, September and December during the term of such Lender's
Commitment, commencing December 31, 1997, and on the Termination
Date.
(b) In addition to the fee provided for in subsection (a),
above, the Borrower shall pay to the Agent, for the account of the
Agent, such fees as are provided for in the Fee Letter.
SECTION 2.05. Reduction of the Commitments. (a) The Borrower
shall have the right, upon at least three Business Days' notice to
the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders;
provided that the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount which is less than the
aggregate principal amount of the A and B Advances then
outstanding; and provided, further, that each partial reduction
shall be in a minimum amount of $10,000,000 or any whole multiple
of $1,000,000 in excess thereof. Any termination or reduction of
the Commitments shall be irrevocable, and the Commitments shall not
thereafter be reinstated.
(b) On the Termination Date, the Commitments of the Lenders
shall be reduced to zero.
SECTION 2.06. Repayment of A Advances. The Borrower shall
repay the principal amount of each A Advance made by each Lender in
accordance with the A Note to the order of such Lender.
SECTION 2.07. Interest on A Advances. The Borrower shall pay
interest on the unpaid principal amount of each A Advance owing to
each Lender from the date of such A Advance until such principal
amount shall be paid in full, at the Applicable Rate for such A
Advance (except as otherwise provided in this Section 2.07),
payable as follows:
(a) Base Rate Advances. If such A Advance is a Base
Rate Advance, interest thereon shall be payable quarterly in
arrears on the last day of each March, June, September and
December, on the date of any Conversion of such Base Rate
Advance and on the date such Base Rate Advance shall become
due and payable or shall otherwise be paid in full; provided
that at any time an Event of Default shall have occurred and
be continuing, thereafter each Base Rate Advance shall bear
interest payable on demand, at a rate per annum equal at all
times to the Default Rate.
(b) Adjusted CD Rate Advances. If such A Advance is an
Adjusted CD Rate Advance, interest thereon shall be payable on
the last day of such Interest Period and, if the Interest
Period for such A Advance has a duration of more than 90 days,
on each day that occurs during such Interest Period every 90
days from the first day of such Interest Period; provided that
at any time an Event of Default shall have occurred and be
continuing, thereafter each Adjusted CD Rate Advance shall
bear interest payable on demand, at a rate per annum equal at
all times to the Default Rate.
(c) Eurodollar Rate Advances. If such A Advance is a
Eurodollar Rate Advance, interest thereon shall be payable on
the last day of such Interest Period and, if the Interest
Period for such A Advance has a duration of more than three
months, on that day of each third month during such Interest
Period that corresponds to the first day of such Interest
Period (or, if any such month does not have a corresponding
day, then on the last day of such month); provided that at any
time an Event of Default shall have occurred and be
continuing, thereafter each Eurodollar Rate Advance shall bear
interest payable on demand, at a rate per annum equal at all
times to the Default Rate.
SECTION 2.08. Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to Agent for the account of each
Lender any costs actually incurred by such Lender with respect to
Eurodollar Rate Advances which are attributable to such Lender's
compliance with regulations of the Board of Governors of the
Federal Reserve System requiring the maintenance of reserves with
respect to liabilities or assets consisting of or including
Eurocurrency Liabilities. Such costs shall be paid to the Agent
for the account of such Lender in the form of additional interest
on the unpaid principal amount of each Eurodollar Rate Advance of
such Lender, from the date of such A Advance until such principal
amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the Eurodollar
Rate for the Interest Period for such A Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to
100% minus the Eurodollar Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is
payable on such A Advance. Such additional interest shall be
determined by such Lender and notified to the Borrower through the
Agent. A certificate as to the amount of such additional interest,
submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error,
provided that the determination thereof shall have been made by
such Lender in good faith.
SECTION 2.09. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Adjusted CD Rate or Eurodollar
Rate, as applicable. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks.
(b) The Agent shall give prompt notice to the Borrower and
the Lenders of the applicable interest rate determined by the Agent
for purposes of Section 2.07(a), (b) or (c), and the applicable
rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 2.07(b) or
(c).
(c) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Adjusted CD Rate for
any Adjusted CD Rate Advances, or the Eurodollar Rate for any
Eurodollar Rate Advances, due to the unavailability of funds to
such Reference Banks in the relevant financial markets:
(i) the Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for
such Adjusted CD Rate Advances or Eurodollar Rate Advances, as
the case may be;
(ii) each such Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or if such Advance is then a Base
Rate Advance, will continue as a Base Rate Advance); and
(iii) the obligation of the Lenders to make, or to
Convert A Advances into, Adjusted CD Rate Advances or
Eurodollar Rate Advances, as the case may be, shall be
suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no
longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the
cost to such Majority Lenders of making, funding or maintaining
their respective Eurodollar Rate Advances for such Interest Period,
the Agent shall forthwith so notify the Borrower and the Lenders,
whereupon:
(i) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance or, if requested by the
Borrower in accordance with Section 2.10, an Adjusted CD Rate
Advance; and
(ii) the obligation of the Lenders to make, or to Convert
A Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
(e) If the Borrower shall fail to (i) select the duration of
any Interest Period for any Adjusted CD Rate Advances or any
Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01,
(ii) provide a Notice of Conversion with respect to any Eurodollar
Rate Advances or Adjusted CD Rate Advances on or prior to 12:00
noon (A) on the third Business Day prior to the last day of the
Interest Period applicable thereto, in the case of a Conversion to
or in respect of Eurodollar Rate Advances, or (B) on the second
Business Day prior to the last day of the Interest Period
applicable thereto, in the case of a Conversion to or in respect of
Adjusted CD Rate Advances, or (iii) satisfy the applicable
conditions precedent set forth in Section 3.02 with respect to the
Conversion to or in respect of any Eurodollar Rate Advances or
Adjusted CD Rate Advances, the Agent will forthwith so notify the
Borrower and the Lenders and such Advances will automatically, on
the last day of the then existing Interest Period therefor, Convert
into Base Rate Advances; provided, however, that if, in the case of
any failure by the Borrower pursuant to clause (iii), above, the
Majority Lenders do not notify the Borrower within 30 days after
such Conversion into Base Rate Advances that they have agreed to
waive, or have decided not to waive, the applicable conditions
precedent set forth in Section 3.02 that the Borrower failed to
satisfy, the Majority Lenders shall be deemed to have waived such
conditions precedent solely with respect to the Advances so
Converted, and the Borrower shall, at any time after such 30-day
period, be permitted to Convert such Advances into Eurodollar Rate
Advances or Adjusted CD Rate Advances; and provided further,
however, that such deemed waiver shall be of no further force or
effect if, at any time after such 30-day period, the Majority
Lenders notify the Borrower that they no longer agree to waive such
conditions precedent, in which case any such Advances so Converted
into Eurodollar Rate Advances or Adjusted CD Rate Advances shall
automatically Convert into Base Rate Advances on the last day of
the then existing Interest Period therefor.
(f) On the date on which the aggregate unpaid principal
amount of A Advances comprising any A Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than the product of
(i) $1,000,000 and (ii) the number of Lenders on such date, such A
Advances shall, if they are Advances of a Type other than Base Rate
Advances, automatically Convert into Base Rate Advances, and on and
after such date the right of the Borrower to Convert such A
Advances into Advances of a Type other than Base Rate Advances
shall terminate; provided, however, that if and so long as each
such A Advance shall be of the same Type and have the same Interest
Period as A Advances comprising another A Borrowing or other A
Borrowings, and the aggregate unpaid principal amount of all such A
Advances shall equal or exceed the product of (i) $1,000,000 and
(ii) the number of Lenders on such date, the Borrower shall have
the right to continue all such A Advances as, or to Convert all
such A Advances into, Advances of such Type having such Interest
Period.
(g) Upon the occurrence and during the continuance of any
Event of Default, each outstanding Eurodollar Rate Advance and each
outstanding Adjusted CD Rate Advance shall automatically Convert to
a Base Rate Advance at the end of the Interest Period then in
effect for such Eurodollar Rate Advance or Adjusted CD Rate
Advance.
SECTION 2.10. Voluntary Conversion of A Advances. Subject to
the applicable conditions set forth in Section 3.02, the Borrower
may on any Business Day, by delivering a notice of Conversion (a
"Notice of Conversion") to the Agent not later than 12:00 noon
(i) on the third Business Day prior to the date of the proposed
Conversion, in the case of a Conversion to or in respect of
Eurodollar Rate Advances, (ii) on the second Business Day prior to
the date of the proposed Conversion, in the case of a Conversion to
or in respect of Adjusted CD Rate Advances and (iii) on the date of
the proposed Conversion, in the case of a Conversion to or in
respect of Base Rate Advances, and subject to the provisions of
Sections 2.09 and 2.13, Convert all A Advances of one Type
comprising the same A Borrowing into Advances of another Type;
provided, however, that, in the case of any Conversion of any
Adjusted CD Rate Advances or Eurodollar Rate Advances into Advances
of another Type on a day other than the last day of an Interest
Period for such Adjusted CD Rate Advances or Eurodollar Rate
Advances, the Borrower shall be obligated to reimburse the Lenders
in respect thereof pursuant to Section 8.04(b). Each such Notice
of Conversion shall be in substantially the form of Exhibit 2.10
and shall, within the restrictions specified above, specify (A) the
date of such Conversion, (B) the A Advances to be Converted, (C) if
such Conversion is into Adjusted CD Rate Advances or Eurodollar
Rate Advances, the duration of the Interest Period for each such A
Advance, and (D) the aggregate amount of A Advances proposed to be
Converted.
SECTION 2.11. Optional Prepayments of Advances. The Borrower
may, upon at least three Business Day's notice to the Agent stating
the proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Advances comprising part of
the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that each partial prepayment
shall be in an aggregate principal amount not less than $1,000,000
(or, if lower, the principal amount outstanding hereunder on the
date of such prepayment) or an integral multiple of $1,000,000 in
excess thereof. In the case of any such prepayment of an Adjusted
CD Rate Advance, Eurodollar Rate Advance or a B Advance, the
Borrower shall be obligated to reimburse the Lender(s) in respect
thereof pursuant to Section 8.04(b). Except as provided in this
Section 2.11 and in Section 2.12, the Borrower shall have no right
to prepay any principal amount of any Advances.
SECTION 2.12. Mandatory Prepayments. (a) On the date of any
termination or reduction of the Commitments pursuant to Section
2.05, the Borrower shall pay or prepay for the ratable accounts of
the Lenders so much of the principal amount outstanding under this
Agreement as shall be necessary in order that the principal amount
outstanding (after giving effect to such prepayment) will not
exceed the amount of Commitments following such termination or
reduction, together with (A) accrued interest to the date of such
prepayment on the principal amount repaid or prepaid and (B) in the
case of prepayments of Eurodollar Rate Advances, Adjusted CD Rate
Advances or B Advances, any amount payable to the Lenders pursuant
to Section 8.04(b).
(b) All prepayments required to be made pursuant to this
Section 2.12 shall be applied by the Agent as follows:
(i) first, to the prepayment of the A Advances (without
reference to minimum dollar requirements), applied to
outstanding Base Rate Advances up to the full amount thereof
before they are applied to the ratable prepayment of
Eurodollar Rate and Adjusted CD Rate Advances; and
(ii) second, to the prepayment of the B Advances (without
reference to minimum dollar requirements), applied ratably
among all the Lenders holding B Advances.
(c) In lieu of prepaying any Eurodollar Rate Advances,
Adjusted CD Rate Advances or B Advances under any provision (other
than Sections 2.14 and 6.01) of this Agreement, the Borrower may,
upon notice to the Agent, deliver such funds to the Agent, to be
held as additional cash collateral securing the obligations
hereunder and under the Notes. The Agent shall deposit all amounts
delivered to it in a non-interest-bearing special purpose cash
collateral account, to be governed by a cash collateral agreement
in form and substance satisfactory to the Borrower and the Agent,
and shall apply all such amounts in such account against such
Advances on the last day of the Interest Period therefor. The
Agent shall promptly notify the Lenders of any election by the
Borrower to deliver funds to the Agent under this subsection (c).
SECTION 2.13. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of
imposition or increase of reserve requirements, in the case of
Adjusted CD Rate Advances, included in the definition of Adjusted
CD Rate or, in the case of Eurodollar Rate Advances, included in
the Eurodollar Rate Reserve Percentage) in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline
or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any
increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Adjusted CD Rate Advances or Eurodollar Rate
Advances, then the Borrower shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient
to compensate such Lender for such increased cost. A certificate
as to the amount of such increased cost, submitted to the Borrower
and the Agent by such Lender, shall be conclusive and binding for
all purposes, absent manifest error, provided that the
determination thereof shall have been made by such Lender in good
faith.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type,
then, upon demand by such Lender (with a copy of such demand to the
Agent), the Borrower shall immediately pay to the Agent for the
account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or
such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to
be allocable to the existence of such Lender's Commitment. A
certificate as to such amounts submitted to the Borrower and the
Agent by such Lender, describing in reasonable detail the manner in
which such amounts have been calculated, shall be conclusive and
binding for all purposes, absent manifest error, provided that the
determination and allocation thereof shall have been made by such
Lender in good faith.
(c) Notwithstanding the provisions of subsections (a) or (b),
above, to the contrary, no Lender shall be entitled to demand
compensation or be compensated thereunder to the extent that such
compensation relates to any period of time more than 60 days prior
to the date upon which such Lender first notified the Borrower of
the occurrence of the event entitling such Lender to such
compensation (unless, and to the extent, that any such compensation
so demanded shall relate to the retroactive application of any
event so notified to the Borrower).
SECTION 2.14. Illegality. Notwithstanding any other
provision of this Agreement to the contrary, if any Lender (the
"Affected Lender") shall notify the Agent and the Borrower that the
introduction of or any change in or in the interpretation of any
law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for the
Affected Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund
or maintain Eurodollar Rate Advances hereunder, (i) all Eurodollar
Rate Advances of the Affected Lender shall, on the fifth Business
Day following such notice from the Affected Lender, automatically
be Converted into a like number of Base Rate Advances, each in the
amount of the corresponding Eurodollar Rate Advance of the Affected
Lender being so Converted (each such Advance, as so Converted,
being an "Affected Lender Advance"), and the obligation of the
Affected Lender to make, maintain, or Convert A Advances into
Eurodollar Rate Advances shall thereupon be suspended until the
Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist, or the
Affected Lender has been replaced pursuant to Section 8.07(g), and
(ii) in the event that, on the last day of each of the then-current
Interest Periods for each Eurodollar Rate Advance (each such
Advance being an "Unaffected Lender Advance") of each of the other
Lenders (each such Lender being an "Unaffected Lender"), the Agent
shall have yet to notify the Borrower and the Lenders that the
circumstances causing such suspension of the Affected Lender's
obligations as aforesaid no longer exist, or the Affected Lender
has not yet been replaced pursuant to Section 8.07(g), such
Unaffected Lender Advance shall be Converted by the Borrower in
accordance with Section 2.10 into an Advance of another Type (or,
in the event that the Borrower shall fail to duly deliver a Notice
of Conversion with respect thereto, into a Base Rate Advance), and
the obligation of such Unaffected Lender to make, maintain, or
Convert A Advances into Eurodollar Rate Advances shall be suspended
until the Agent shall so notify the Borrower and the Lenders, or
the Affected Lender shall be so replaced. For purposes of any
prepayment under this Agreement, each Affected Lender Advance shall
be deemed to continue to be part of the same Borrowing as the
Unaffected Lender Advance to which it corresponded at the time of
the Conversion of such Affected Lender Advance pursuant to clause
(i), above.
SECTION 2.15. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later
than 1:00 p.m. on the day when due in Dollars to the Agent at its
address referred to in Section 8.02 in same day funds. The Agent
will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or fees ratably
(other than amounts payable pursuant to Section 2.03, 2.08,
2.12(b)(iii), 2.16 or 8.04(b)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of a Lender Assignment and
recording of the information contained therein in the Register
pursuant to Section 8.07(d), from and after the effective date
specified in such Lender Assignment, the Agent shall make all
payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties
to such Lender Assignment shall make all appropriate adjustments in
such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder
or under any Note held by such Lender, to charge from time to time
against any or all of the Borrower's accounts with such Lender any
amount so due.
(c) All computations of interest based on the Alternate Base
Rate and the Federal Funds Rate and of fees shall be made by the
Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Adjusted CD Rate
and the Eurodollar Rate shall be made by the Agent, and all
computations of interest pursuant to Section 2.09 shall be made by
a Lender, on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest or fees
are payable. Each determination by the Agent (or, in the case of
Section 2.09, by a Lender) of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error,
provided that such determination shall have been made by the Agent
or such Lender, as the case may be, in good faith.
(d) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation
of payment of interest or fees, as the case may be; provided,
however, that if such extension would cause payment of interest on
or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in
full, the Agent may assume that the Borrower has made such payment
in full to the Agent on such date and the Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent that the Borrower shall not have so made such
payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.16. Taxes. (a) Any and all payments by the
Borrower hereunder and under the other Loan Documents shall be
made, in accordance with Section 2.15, free and clear of and
without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its overall net income and franchise taxes
imposed on it by the jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income and franchise taxes imposed
on it by the jurisdiction of such Lender's Applicable Lending
Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"); provided,
however, that, notwithstanding the foregoing, Taxes shall not
include any taxes otherwise required to be deducted by the Borrower
pursuant to this subsection (a) as a result of activities of any
Lender or the Agent in the State of Iowa (other than as a result,
or in respect, of this Agreement). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any other Loan Document to any Lender or
the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
2.16) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or under any other Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Lender and the Agent for
the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.16) paid by such Lender or the
Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from
the date such Lender or the Agent (as the case may be) makes
written demand therefor. Nothing herein shall preclude the right
of the Borrower to contest any such Taxes or Other Taxes so paid,
and the Lenders in question or the Agent (as the case may be) will,
following notice from, and at the expense of, the Borrower,
reasonably cooperate with the Borrower to preserve the Borrower's
rights to contest such Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower will furnish to the Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender agrees that, on or prior to the date upon
which it shall become a party hereto, and upon the reasonable
request from time to time of the Borrower or the Agent, such Lender
will deliver to the Borrower and the Agent either (i) a statement
that it is organized under the laws of a jurisdiction within the
United States or (ii) duly completed copies of such form or forms
as may from time to time be prescribed by the United States
Internal Revenue Service indicating that such Lender is entitled to
receive payments without deduction or withholding of any United
States federal income taxes, as permitted by the Internal Revenue
Code of 1986, as amended from time to time. Each Lender that
delivers to the Borrower and the Agent the form or forms referred
to in the preceding sentence further undertakes to deliver to the
Borrower and the Agent further copies of such form or forms, or
successor applicable form or forms, as the case may be, as and when
any previous form filed by it hereunder shall expire or shall
become incomplete or inaccurate in any respect. Each Lender
represents and warrants that each such form supplied by it to the
Agent and the Borrower pursuant to this subsection (e), and not
superseded by another form supplied by it, is or will be, as the
case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable
pursuant to this Section 2.16 shall use its best efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts which may
thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.16 shall survive the payment
in full of principal and interest hereunder and under the Notes.
SECTION 2.17. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the A
Advances made by it (other than pursuant to Section 2.08, 2.13,
2.16 or 8.04(b)) in excess of its ratable share of payments on
account of the A Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations
in the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of
such recovery, together with an amount equal to such Lender's
ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.17 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such
participation.
SECTION 2.18. Extension of Termination Date. (a) At least 30
but not more than 60 days before each anniversary of the date of
this Agreement, the Borrower may, by delivering a written request
to the Agent (each such request being irrevocable), request that
each Lender extend for one year the Termination Date with respect
to such Lender's Commitment. The Agent shall, upon its receipt of
such a request, promptly notify each Lender thereof, and request
that each Lender promptly advise the Agent of its approval or
rejection of such request.
(b) Upon receipt of such notification from the Agent, each
Lender may (but shall not be required to), in its sole and absolute
discretion, agree to extend the Termination Date with respect to
its Commitment for a period of one year, and shall (should it
determine to do so), no later than 20 days prior to such
anniversary, notify the Agent of its approval concerning such
request. If any Lender shall not so notify the Agent, such Lender
shall be deemed not to have consented to such request. The Agent
shall thereupon notify the Borrower as to the Lenders, if any, that
have consented to such request
(c) If one or more Lenders (the "Nonextending Lenders")
elects not to extend (or fails to notify the Agent of its consent
to extend) its Commitment, the Borrower shall have the right to
arrange with an Eligible Assignee acceptable to the Borrower and
the Agent to assume all or a part of such Nonextending Lender's
obligations under this Agreement. If there shall be no substituted
Lender or Lenders to assume the obligations of a Nonextending
Lender, then (i) the Commitment of such Nonextending Lender shall
terminate on the Termination Date in effect immediately before such
extension, (ii) the Borrower shall repay in full on such
Termination Date all Advances by such Nonextending Lender and all
other amounts payable to such Nonextending Lender under this
Agreement, and (iii) such Nonextending Lender shall not be
obligated to make any Advances the maturity date of which would be
later than such Termination Date. In such case each remaining
Lender's Percentage for the period of such extension shall be
changed so as to equal that percentage which such remaining
Lender's Commitment hereunder represents of the total Commitments
of all remaining Lenders who have agreed to such extension. If the
Agent shall arrange with one or more Eligible Assignees to assume
all or part of the obligations of any Nonextending Lender, then
such Nonextending Lender and such Eligible Assignee or Eligible
Assignees shall execute and deliver to the Agent, for its
acceptance and recording in the Register, a Lender Assignment,
together with any Notes subject to such assignment.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Closing. The
Commitments of the Lenders shall not become effective unless the
following conditions precedent shall have been fulfilled on or
prior to October 20, 1997 (or such later Business Day as the
parties hereto may mutually agree):
(a) The Agent shall have received the following, each
dated the date of the Closing, in form and substance
satisfactory to the Lenders and (except for the Notes) in
sufficient copies for each Lender:
(i) this Agreement, duly executed by the Borrower,
each Bank and the Agent;
(ii) the A Notes payable to the order of the
Lenders, respectively, duly completed and executed by the
Borrower;
(iii) certified copies of the resolutions of the
Board of Directors of the Borrower approving this
Agreement, the Notes and the other Loan Documents to
which it is, or is to be, a party, and of all documents
evidencing other necessary corporate action with respect
to this Agreement, the Notes and such Loan Documents;
(iv) certified copies of the resolutions of the
Board of Directors of the Parent approving the Support
Agreement and the other Loan Documents to which it is, or
is to be, a party, together with a certificate of the
Secretary or an Assistant Secretary of the Parent
certifying that attached thereto is a listing of all
credit facilities of the Borrower having the benefit of a
guaranty or other support arrangement from the Parent;
and copies of all documents evidencing other necessary
corporate action with respect to the Support Agreement
and such Loan Documents;
(v) a certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names, true
signatures and incumbency of the officers of the Borrower
authorized to sign this Agreement, the Notes and the
other Loan Documents to which it is, or is to be, a
party;
(vi) a certificate of the Secretary or an Assistant
Secretary of the Parent certifying the names, true
signatures and incumbency of the officers of the Parent
authorized to sign the Support Agreement and the other
Loan Documents to which it is, or is to be, a party;
(vii) copies of the Certificate of Incorporation
(or comparable charter document) and by-laws of the
Borrower, together with all amendments thereto, certified
by the Secretary or an Assistant Secretary of the
Borrower;
(viii) copies of the Certificate of Incorporation
(or comparable charter document) and by-laws of the
Parent, together with all amendments thereto, certified
by the Secretary or an Assistant Secretary of the Parent;
(ix) certified copies of all Governmental Approvals,
if any, required in connection with the execution,
delivery and performance of this Agreement and the other
Loan Documents;
(x) certified copies of the financial statements
referred to in Section 5(d) of the Support Agreement;
(xi) the Support Agreement duly executed by the
Parent and the Borrower, together with (A) a letter from
the Parent to the Agent affirming that the Lenders are
"Lenders" under the Support Agreement and (B) proper
Financing Statements (Form UCC-1 or UCC-3) to be filed
under the Uniform Commercial Code in all jurisdictions as
may be necessary or, in the opinion of the Agent,
desirable to perfect the security interests created by
the Support Agreement;
(xii) favorable opinions of:
(A) Winthrop, Stimson, Putnam & Roberts,
special New York counsel for the Borrower and the
Parent, in substantially the form of Exhibit
3.01(a)(xii)-1 and as to such other matters as the
Majority Lenders, through the Agent, may reasonably
request;
(B) Stephen W. Southwick, Counsel for the
Borrower & Vice President, General Counsel and
Secretary of the Parent, in substantially the form
of Exhibit 3.01(a)(xii)-2 and as to such other
matters as the Majority Lenders, through the Agent,
may reasonably request;
(C) King & Spalding, special New York counsel
to the Agent, in substantially the form of Exhibit
3.01(a)(xii)-3 and as to such other matters as the
Majority Lenders, through the Agent, may reasonably
request; and
(xiii) such other approvals, opinions and
documents as any Lender, through the Agent, may
reasonably request.
(b) The following statements shall be true and correct
and the Agent shall have received a certificate of a duly
authorized officer of the Borrower, dated the date of the
Closing and in sufficient copies for each Lender, stating
that:
(i) the representations and warranties set forth in
Section 4.01 of this Agreement are true and correct on
and as of the date of the Closing as though made on and
as of such date, and
(ii) no event has occurred and is continuing that
constitutes an Unmatured Default or an Event of Default.
(c) The Agent shall have received a certificate (the
statements in which shall be true) of a duly authorized
officer of the Parent, dated the date of the Closing and in
sufficient copies for each Lender, stating that the
representations and warranties set forth in Section 5 of the
Support Agreement are true and correct on and as of the date
of the Closing as though made on and as of such date.
(d) The Borrower shall have paid (i) all fees under or
referenced in Section 2.04 hereof, to the extent then due and
payable, and (ii) all costs and expenses of the Agent
(including counsel fees and disbursements) incurred through
(and for which statements have been provided prior to) the
Closing.
(e) The Borrower shall have executed and delivered the
Other Credit Agreement and the "Loan Documents" referred to
therein, and all conditions precedent set forth in Section
3.01 thereof shall have been satisfied.
(f) The Borrower shall have terminated the commitments
under the Existing Facility, and all amounts accrued and
outstanding thereunder (whether for principal, interest, fees
or other amounts) shall have been paid in full.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of
each A Borrowing (including the initial A Borrowing) shall be
subject to the conditions precedent that, on the date of such A
Borrowing,
(a) the following statements shall be true and correct
(and each of the giving of the applicable Notice of A
Borrowing and the acceptance by the Borrower of the proceeds
therefrom shall constitute a representation and warranty by
the Borrower that, on the date of such A Borrowing, such
statements are true and correct):
(i) the representations and warranties contained in
Section 4.01 and in Section 5 of the Support Agreement
are true and correct on and as of the date of such A
Borrowing, before and after giving effect to the
application of the proceeds therefrom, as though made on
and as of such date; and
(ii) no event has occurred and is continuing, or
would result from such A Borrowing or from the
application of the proceeds therefrom, which constitutes
an Event of Default or an Unmatured Default; and
(b) the Agent shall have received such other approvals,
opinions, or documents as the Agent, or the Majority Lenders
through the Agent, may reasonably request, and such approvals,
opinions, and documents shall be satisfactory in form and
substance to the Agent.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender to make a B Advance on the occasion of a
B Borrowing (including the initial B Borrowing) shall be subject to
the conditions precedent that (a) the Agent shall have received the
written confirmatory Notice of B Borrowing with respect thereto;
(b) on or before the date of such B Borrowing, but prior to such B
Borrowing, the Agent shall have received a B Note payable to the
order of such Lender for each of the one or more B Advances to be
made by such Lender as part of such B Borrowing, in a principal
amount equal to the principal amount of the B Advance to be
evidenced thereby and otherwise on such terms as were agreed to for
such B Advance in accordance with Section 2.03; (c) on the date of
such B Borrowing the following statements shall be true and correct
(and each of the giving of the applicable Notice of B Borrowing and
the acceptance by the Borrower of the proceeds therefrom shall
constitute a representation and warranty by the Borrower that, on
the date of such B Borrowing, such statements are true and
correct):
(i) the representations and warranties contained in
Section 4.01 and in Section 5 of the Support Agreement are
true and correct on and as of the date of such B Borrowing,
before and after giving effect to such B Borrowing and to the
application of the proceeds therefrom, as though made on and
as of such date; and
(ii) no event has occurred and is continuing, or
would result from such B Borrowing or from the application of
the proceeds therefrom, which constitutes an Event of Default
or an Unmatured Default; and
(d) the Agent shall have received such other approvals, opinions,
or documents as the Agent, or the Majority Lenders through the
Agent, may reasonably request, and such approvals, opinions, and
documents shall be satisfactory in form and substance to the Agent.
SECTION 3.04. Reliance on Certificates. The Lenders and the
Agent shall be entitled to rely conclusively upon the certificates
delivered from time to time by officers of the Borrower and the
Parent as to the names, incumbency, authority and signatures of the
respective Persons named therein until such time as the Agent may
receive a replacement certificate, in form acceptable to the Agent,
from an officer of such Person identified to the Agent as having
authority to deliver such certificate, setting forth the names and
true signatures of the officers and other representatives of such
Person thereafter authorized to act on behalf of such Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to do business in, and is in good standing in, all other
jurisdictions where the nature of its business or the nature of
property owned or used by it makes such qualification necessary
(except where the failure to so qualify would not have a material
adverse affect on the business, financial condition, operations,
results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole).
(b) The execution, delivery and performance by the
Borrower of this Agreement, the Notes and the other Loan Documents
to which it is or will be a party are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not and will not contravene (i) the
Borrower's charter or by-laws, (ii) law, or (iii) any legal or
contractual restriction binding on or affecting the Borrower; and
such execution, delivery and performance do not and will not result
in or require the creation of any Lien (other than pursuant to the
Loan Documents) upon or with respect to any of its properties.
(c) No Governmental Approval is required in connection
with the execution, delivery or performance of any Loan Document.
(d) This Agreement is, and each other Loan Document to
which the Borrower will be a party when executed and delivered
hereunder will be, legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms, subject to the qualifications, however, that the
enforcement of the rights and remedies herein and therein is
subject to bankruptcy and other similar laws of general application
affecting rights and remedies of creditors and that the remedy of
specific performance or of injunctive relief is subject to the
discretion of the court before which any proceedings therefor may
be brought.
(e) Since December 31, 1996, there has been no material
adverse change in the business, financial condition, operations,
results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole, or in the Borrower's ability to
perform its obligations under this Agreement or any other Loan
Document to which it is or will be a party.
(f) The unaudited consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as at December 31,
1996, and the related unaudited consolidated and consolidating
statements of income of the Borrower and its Subsidiaries for the
fiscal year then ended, and the unaudited consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries
as at June 30, 1997 and the related unaudited consolidated and
consolidating statements of income for the six-month period then
ended, copies of each of which have been furnished to each Bank,
fairly present (subject, in the case of such balance sheets and
statements of income for the six months ended June 30, 1997, to
year-end adjustments) the consolidated financial condition of the
Borrower and its Subsidiaries as at such dates and the consolidated
results of operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance, in all material
respects, with generally accepted accounting principles
consistently applied.
(g) Except as disclosed in the Parent's Report on Form
10-K for the year ended December 31, 1996 and Report on Form 10-Q
for the period ended June 30, 1997, there is no pending or
threatened action or proceeding affecting the Borrower or any of
its Subsidiaries or properties before any court, governmental
agency or arbitrator, that might reasonably be expected to
materially adversely affect (i) the business, financial condition,
results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole, or (ii) the ability of the Borrower
to perform its obligations under this Agreement or any other Loan
Document to which the Borrower or the Parent is or is to be a
party; and since June 30, 1997 there have been no material adverse
developments in any action or proceeding so disclosed.
(h) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan of the Borrower or any
of its ERISA Affiliates which would result in a material liability
to the Borrower. Since the date of the most recent Schedule B
(Actuarial Information) to the annual report of Plans maintained by
the Borrower (Form 5500 Series), if any, there has been no material
adverse change in the funding status of the Plans referred to
therein and no "prohibited transaction" has occurred with respect
thereto which is reasonably expected to result in a material
liability to the Borrower. Neither the Borrower nor any of its
ERISA Affiliates has incurred nor reasonably expects to incur any
material withdrawal liability under ERISA to any Multiemployer
Plan.
(i) Each of the Support Agreement and the Merger
Agreement is in full force and effect without having been amended,
modified, waived or terminated in any manner, except in each case
in accordance with the terms thereof.
(j) The Borrower has filed all tax returns (Federal,
state and local) required to be filed and paid all taxes shown
thereon to be due, including interest and penalties, or, to the
extent the Borrower is contesting in good faith an assertion of
liability based on such returns, has provided adequate reserves for
payment thereof in accordance with generally accepted accounting
principles.
(k) Following application of the proceeds of each
Advance, not more than 25 percent of the value of the assets of the
Borrower and its Subsidiaries on a consolidated basis will be
margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System).
(l) The Borrower is not an "investment company" or a
company "controlled" by an "investment company", within the meaning
of the Investment Company Act of 1940, as amended.
(m) As of the date hereof, the Borrower is not a
"holding company" within the meaning of PUHCA.
(n) From and after the date upon which, and at all times
during which, any Subsidiary of the Borrower shall be a
"public-utility company" within the meaning of PUHCA, the Borrower
will be a "holding company" within the meaning of PUHCA, but the
Borrower and its Subsidiaries will be exempt from the provisions of
that Act, except Section 9(a)(2) thereof, by virtue of having filed
with the Securities and Exchange Commission a Statement by Holding
Company Claiming Exemption Under Rule U-2 from the Provisions of
the Public Utility Holding Company Act of 1935 on Form U-3A-2.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
amount in respect of any Note shall remain unpaid or any Lender
shall have any Commitment, the Borrower will, unless the Majority
Lenders shall otherwise consent in writing:
(a) Payment of Taxes, Etc. Pay and discharge, and cause
each of its Subsidiaries to pay and discharge, before the same
shall become delinquent, all taxes, assessments and governmental
charges, royalties or levies imposed upon it or upon its property
except, in the case of taxes, to the extent the Borrower or such
Subsidiary is contesting the same in good faith and by appropriate
proceedings and has set aside adequate reserves for the payment
thereof in accordance with generally accepted accounting
principles.
(b) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance covering the Borrower and each of its
Subsidiaries and their respective properties in effect at all times
in such amounts and covering such risks as is usually carried by
companies of a similar size (based on the aggregate book value of
the Parent's assets, as determined on a consolidated basis in
accordance with generally accepted accounting principles
consistently applied), engaged in similar businesses and owning
similar properties in the same general geographical area in which
the Borrower and each such Subsidiary operates, either with
reputable insurance companies or, in whole or in part, by
establishing reserves of one or more insurance funds, either alone
or with other corporations or associations.
(c) Preservation of Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate existence, material rights (statutory and
otherwise) and franchises; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to preserve
and maintain any such right or franchise, and no such Subsidiary
shall be required to preserve and maintain its corporate existence,
unless the failure to do so would have a material adverse effect on
the business, financial condition, operations, results of
operations or prospects of the Borrower and its Subsidiaries, taken
as a whole, or on the Borrower's ability to perform its obligations
under this Agreement or any other Loan Document to which it is or
will be a party.
(d) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, with the requirements of all
applicable laws, rules, regulations and orders of any governmental
authority, including without limitation any such laws, rules,
regulations and orders relating to zoning, environmental
protection, use and disposal of Hazardous Substances, land use,
ERISA, construction and building restrictions, and employee safety
and health matters relating to business operations, the
non-compliance with which would have a material adverse effect on
the business, financial condition, operations, results of
operations or prospects of the Borrower and its Subsidiaries, taken
as a whole, or on the Borrower's ability to perform its obligations
under this Agreement or any other Loan Document to which it is or
will be a party.
(e) Inspection Rights. At any time and from time to
time upon reasonable notice, permit or arrange for the Agent, the
Lenders and their respective agents and representatives to examine
and make copies of and abstracts from the records and books of
account of, and the properties of, the Borrower and each of its
Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and its Subsidiaries with the Borrower and its
Subsidiaries and their respective officers, directors and
accountants.
(f) Keeping of Books. Keep, and cause its Subsidiaries
to keep, proper records and books of account, in which full and
correct entries shall be made of all financial transactions of the
Borrower and its Subsidiaries and the assets and business of the
Borrower and its Subsidiaries, in accordance with generally
accepted accounting principles consistently applied.
(g) Maintenance of Properties, Etc. Maintain, and cause
each of its Subsidiaries to maintain, good and marketable title to,
and preserve, maintain, develop, and operate in substantial
conformity with all laws and material contractual obligations, all
of its properties which are used or useful in the conduct of its
business in good working order and condition, ordinary wear and
tear excepted, except where the failure to do so would not have a
material adverse effect on the business, financial condition,
operations, results of operations or prospects of the Borrower and
its Subsidiaries, taken as a whole, or on the Borrower's ability to
perform its obligations under this Agreement or any other Loan
Document to which it is or will be a party.
(h) Reporting Requirements. Furnish to each Lender:
(i) as soon as possible and in any event within
five Business Days after the occurrence of each Unmatured
Default or Event of Default continuing on the date of such
statement, a statement of a Senior Financial Officer setting
forth details of such Unmatured Default or Event of Default
and the action that the Borrower proposes to take with respect
thereto;
(ii) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such
quarter and consolidated statements of income, retained
earnings and cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, all in
reasonable detail and duly certified (subject to year-end
audit adjustments) by a Senior Financial Officer as having
been prepared in accordance (in all material respects) with
generally accepted accounting principles consistent with those
applied in the preparation of the financial statements
referred to in Section 5(d) of the Support Agreement, together
with a certificate of said officer stating that no Unmatured
Default or Event of Default has occurred and is continuing or,
if an Unmatured Default or Event of Default has occurred and
is continuing, a statement as to the nature thereof and the
action that the Borrower proposes to take with respect
thereto;
(iii) as soon as available and in any event
within 120 days after the end of each fiscal year of the
Borrower, a copy of the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal
year and consolidated statements of income, retained earnings
and cash flows of the Borrower and its Subsidiaries for such
fiscal year, in each case (x) accompanied by the audit report
of Arthur Andersen & Co. or another nationally-recognized
independent public accounting firm acceptable to the Majority
Lenders if at any time during such fiscal year the Reference
Ratings were Baa2 or lower (in the case of Moody's) or BBB or
lower (in the case of S&P) or (y) in reasonable detail and
duly certified by a Senior Financial Officer as having been
prepared in accordance (in all material respects) with
generally accepted accounting principles consistent with those
applied in the preparation of the financial statements
referred to in Section 5(d) of the Support Agreement, together
with a certificate of a Senior Financial Officer stating that
no Unmatured Default or Event of Default has occurred and is
continuing or, if an Unmatured Default or Event of Default has
occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower proposes to take with
respect thereto;
(iv) as soon as possible and in any event (A) within
30 days after any ERISA Event described in clause (i) of the
definition of ERISA Event with respect to any Plan of the
Borrower or any ERISA Affiliate of the Borrower has occurred
and (B) within 10 days after any other ERISA Event with
respect to any Plan of the Borrower or any ERISA Affiliate of
the Borrower has occurred, a statement of a Senior Financial
Officer describing such ERISA Event and the action, if any,
which the Borrower or such ERISA Affiliate proposes to take
with respect thereto;
(v) promptly after receipt thereof by the Borrower
or any of its ERISA Affiliates from the PBGC copies of each
notice received by the Borrower or such ERISA Affiliate of the
PBGC's intention to terminate any Plan of the Borrower or such
ERISA Affiliate or to have a trustee appointed to administer
any such Plan;
(vi) promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan (if any)
to which the Borrower or any ERISA Affiliate of the Borrower
is a contributing employer;
(vii) promptly after receipt thereof by the
Borrower or any ERISA Affiliate of the Borrower from a
Multiemployer Plan sponsor, a copy of each notice received by
the Borrower or such ERISA Affiliate concerning the imposition
or amount of withdrawal liability in an aggregate principal
amount of at least $250,000 pursuant to Section 4202 of ERISA
in respect of which the Borrower or such ERISA Affiliate is
reasonably expected to be liable;
(viii) promptly after the Borrower becomes aware
of the occurrence thereof, notice of all actions, suits,
proceedings or other events of (A) of the type described in
Section 4.01(g) or (B) for which the Agent, the Lenders will
be entitled to indemnity under Section 8.04(c);
(ix) promptly after the sending or filing thereof,
copies of all such proxy statements, financial statements, and
reports which the Borrower sends to its public security
holders (if any), and copies of all regular, periodic and
special reports, and all registration statements and periodic
or special reports, if any, which the Borrower or the Parent
files with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor, or
with any national securities exchange; and
(x) promptly after requested, such other
information respecting the business, properties, results of
operations, prospects, revenues, condition or operations,
financial or otherwise, of the Borrower or any of its
Subsidiaries as the Agent or any Lender through the Agent may
from time to time reasonably request.
(i) Use of Proceeds. Use the proceeds of the Advances
hereunder solely for the Borrower's general corporate purposes, and
not to finance any "hostile" or "unfriendly" acquisition.
(j) Merger Agreement; Support Agreement. Comply in all
material respects with its obligations under the Merger Agreement
and the Support Agreement.
(k) Further Assurances. At the expense of the Borrower,
promptly execute and deliver, or cause to be promptly executed and
delivered, all further instruments and documents, and take and
cause to be taken all further actions, that may be necessary or
that the Majority Lenders through the Agent may reasonably request
to enable the Lenders and the Agent to enforce the terms and
provisions of this Agreement and to exercise their rights and
remedies hereunder or under any other Loan Document. In addition,
the Borrower will use all reasonable efforts to duly obtain
Governmental Approvals required in connection with the Loan
Documents from time to time on or prior to such date as the same
may become legally required, and thereafter to maintain all such
Governmental Approvals in full force and effect.
SECTION 5.02. Negative Covenants. So long as any amount in
respect of any Note shall remain unpaid or any Lender shall have
any Commitment, the Borrower will not, without the written consent
of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume, or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume,
or suffer to exist, any lien, security interest, or other charge or
encumbrance (including the lien or retained security title of a
conditional vendor) of any kind, or any other type of arrangement
intended or having the effect of conferring upon a creditor a
preferential interest upon or with respect to any of its properties
of any character (including, without limitation, accounts) (any of
the foregoing being referred to herein as a "Lien"), excluding,
however, from the operation of the foregoing restrictions the Liens
created under the Loan Documents and the following:
(i) Liens for taxes, assessments or governmental charges
or levies to the extent not past due;
(ii) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's liens and
other similar Liens arising in the ordinary course of business
securing obligations which are not overdue or which are being
contested in good faith, provided that any such contested Lien
securing an amount claimed in excess of $1,000,000 shall be
fully bonded within 90 days after the imposition of such Lien;
(iii) pledges or deposits to secure obligations under
workmen's compensation laws or similar legislation, to secure
public or statutory obligations of the Borrower or such
Subsidiary, or to secure the utility obligations of any such
Subsidiary incurred in the ordinary course of business;
(iv) (A) purchase money Liens upon or in property now
owned or hereafter acquired by the Borrower or any of its
Subsidiaries in the ordinary course of business (consistent
with present practices) to secure (1) the purchase price of
such property or (2) Debt incurred solely for the purpose of
financing the acquisition, construction or improvement of any
such property to be subject to such Liens, or (B) Liens
existing on any such property at the time of acquisition, or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided that no such Lien
shall extend to or cover any property other than the property
being acquired, constructed or improved and replacements,
modifications and proceeds of such property, and no such
extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended,
renewed or replaced;
(v) Liens on the capital stock of any of the Borrower's
single-purpose Subsidiaries or any such Subsidiary's assets to
secure the repayment of project financing or Nonrecourse Debt
for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising
in connection with court proceedings, provided that the
execution or other enforcement of such Liens is effectively
stayed and the claims secured thereby are being actively
contested in good faith by appropriate proceedings or the
payment of which is covered in full (subject to customary
deductible amounts) by insurance maintained with responsible
insurance companies and the applicable insurance company has
acknowledged its liability therefor in writing;
(vii) Liens securing obligations under agreements
entered into pursuant to the Iowa Industrial New Jobs Training
Act or any similar or successor legislation, provided that
such obligations do not exceed $1,000,000 in the aggregate at
any one time outstanding; and
(viii) other Liens set forth in Schedule II hereto,
and any extensions or renewals of any such Liens upon or in
the same property theretofore subject thereto.
(b) Debt. (i) Create, incur, assume, or suffer to
exist any Debt other than:
(A) Debt hereunder and under the other Loan
Documents; and
(B) other Debt of the Borrower; provided, however,
that both immediately before and after the incurrence of
any such other Debt, the Parent shall be in compliance
with the covenant set forth in Section 2(a) of the
Support Agreement.
(ii) Permit any of its Subsidiaries to create, incur,
assume, or suffer to exist any Debt other than:
(A) Debt of any Person acquired by the Borrower or
any such Subsidiary (whether by merger, stock or asset
purchase, or otherwise) that was in effect and
outstanding at the time of acquisition;
(B) Debt owing by any such Subsidiary to the
Borrower or to any other such Subsidiary;
(C) Debt of such Subsidiaries under working capital
lines and with respect to Capitalized Lease Obligations
not to exceed $5,000,000 in the aggregate at any one time
outstanding (such dollar limitation to apply to the Debt
of any Persons acquired by and merged into any such
Subsidiary to the extent of any surviving working capital
lines and Capitalized Lease Obligations of any such
Person which shall survive such acquisition and merger);
(D) Debt secured by Liens permitted by Section
5.02(a)(iv) and (v), including Nonrecourse Debt;
(E) Debt under agreements entered into pursuant to
the Iowa Industrial New Jobs Training Act or any similar
or successor legislation, provided that such Debt does
not exceed $1,000,000 in the aggregate at any one time
outstanding; and
(F) other Debt set forth in Schedule III hereto;
provided, however, that both immediately before and after the
incurrence of any Debt described in clauses (A), (B), (C), (D) and
(E), above, or any Debt listed in Schedule III as proposed to be
incurred following the consummation of the Merger, the Parent
shall be in compliance with the covenant set forth in Section 2(a)
of the Support Agreement.
(c) Compliance with ERISA. (i) Permit to exist any
"accumulated funding deficiency" (as defined in Section 412(a) of
the Internal Revenue Code of 1986, as amended from time to time)
(unless such deficiency exists with respect to a Multiple Employer
Plan or Multiemployer Plan and the Borrower has no control over the
reduction or elimination of such deficiency), (ii) terminate, or
permit any ERISA Affiliate of the Borrower to terminate, any Plan
of the Borrower or such ERISA Affiliate so as to result in any
material (in the opinion of the Majority Lenders) liability of the
Borrower to the PBGC, or (iii) permit to exist any occurrence of
any Reportable Event (as defined in Title IV of ERISA), or any
other event or condition, which presents a material (in the opinion
of the Majority Lenders) risk of such a termination by the PBGC of
any Plan of the Borrower or such ERISA Affiliate and such a
material liability to the Borrower.
(d) Transactions with Affiliates. Enter into, or permit
any of its Subsidiaries to enter into, any transaction with an
Affiliate of the Borrower, unless such transaction is on terms no
less favorable to the Borrower or such Subsidiary, as the case may
be, than if the transaction had been negotiated in good faith on an
arm's length basis with a Person which was not an Affiliate of the
Borrower.
(e) Mergers, Etc. (i) Merge with or into or
consolidate with or into any other Person, except pursuant to and
in accordance with the provisions of the Merger Agreement and then
only if, contemporaneously with the consummation of the Merger, the
surviving corporation: (A) expressly assumes in a writing delivered
to the Agent (with sufficient copies for each Lender) the due and
punctual performance and observance of all of the obligations of
the Borrower under or in respect of the Loan Documents and the
Other Credit Agreement and (B) delivers to the Agent (with
sufficient copies for each Lender) an opinion of counsel, in form
and substance satisfactory to the Agent, as to the enforceability
of the obligations set forth in such writing and the obtaining of
all Governmental Approvals necessary for the performance of such
obligations by such surviving corporation and such other matters as
the Agent may reasonably request. Notwithstanding the foregoing,
the Borrower may also merge with or into or consolidate with or
into any of the Parent's Subsidiaries or the Parent, provided that
immediately after giving effect thereto, (W) no event shall occur
and be continuing which constitutes an Unmatured Default or an
Event of Default, (X) the Borrower is the surviving corporation or,
with respect to any merger or consolidation of the Borrower with or
into the Parent, the surviving (if not the Borrower) or resulting
corporation shall have expressly assumed the obligations of the
Borrower under this Agreement, the Notes and the other Loan
Documents to which the Borrower is a party, (Y) the Parent (unless
it shall be the surviving corporation) shall reaffirm its
obligations to the surviving or resulting corporation under the
Support Agreement and (Z) the Borrower shall not be liable with
respect to any Debt or allow its property to be subject to any Lien
which it could not become liable with respect to or allow its
property to become subject to under this Agreement or any other
Loan Document on the date of such transaction; and
(ii) permit any of its Subsidiaries to merge with or into or
consolidate with or into any other Person, except that any such
Subsidiary may merge with or into any other Person, provided that
immediately after giving effect thereto, (A) the surviving
corporation is a Subsidiary of the Borrower, (B) no event shall
occur and be continuing which constitutes an Unmatured Default or
an Event of Default and (C) the Borrower or any of its Subsidiaries
shall not be liable with respect to any Debt or allow its property
to be subject to any Lien which it could not become liable with
respect to or allow its property to become subject to under this
Agreement or any other Loan Document on the date of such
transaction.
(f) Sales, Etc., of Assets. Sell, lease, transfer,
assign or otherwise dispose of all or any substantial part of its
assets, or permit any of its Subsidiaries to sell, lease, transfer,
assign or otherwise dispose of all or any substantial part of its
assets, except (i) sales, leases, transfers and assignments from
one Subsidiary of the Borrower to another such Subsidiary, (ii)
prior to the consummation of the Merger, sales, leases, transfers
and assignments of assets having a book value not in excess of
$10,000,000 in the aggregate and sales, leases, transfers and
assignments of worn out or obsolete equipment no longer used and
useful in the business of the Borrower and its Subsidiaries, (iii)
following the consummation of the Merger, in any transaction in
which the proceeds from such sale, lease, transfer, assignment or
disposition are solely in Cash and Cash Equivalents and such
proceeds are (A) reinvested, or held for no more than 180 days in
Cash and Cash Equivalents pending reinvestment, in lines of
business (other than real estate) in which the Borrower or any of
its Subsidiaries is engaged in at the time of the Closing, (B)
applied as a reduction of the Commitments and prepayment of
Advances pursuant to Sections 2.05, 2.11 and 2.12, or (C) applied
to pay or prepay Debt incurred by the Borrower or any such
Subsidiary in connection with the project comprising such assets,
or (iv) in connection with a sale and leaseback transaction entered
into by any Subsidiary of the Borrower and (v) following the
consummation of the Merger, sales, leases, transfers and
assignments of other assets having a book value not in excess of
$20,000,000 in the aggregate during any 12-calendar-month period in
any single or series of transactions, whether or not related
and sales, leases, transfers and assignments of worn out or
obsolete equipment no longer used and useful in the business of the
Borrower and its Subsidiaries; provided in each case that no
Unmatured Default or Event of Default shall have occurred and be
continuing after giving effect thereto; and provided further
however, that prior to the consummation of the Merger, the Borrower
shall in no event sell, lease, transfer, or assign any of the
McLeodUSA Stock or grant any interest therein to any other person.
(g) Modification of Support Agreement. Agree to amend,
modify, terminate, or waive any provision of the Support Agreement.
(h) Letter of Credit Obligations. Incur, or permit any
of its Subsidiaries to incur, any indebtedness, liabilities or
obligations (whether contingent or otherwise) under reimbursement
or similar agreements with respect to letters of credit issued to
support obligations that do not constitute Debt, except (i)
indebtedness, liabilities or obligations not in excess of
$1,000,000 in the aggregate at any one time outstanding, and (ii)
in respect of bid bonds but only if the Borrower's or such
Subsidiary's obligations in respect of all such bid bonds do not at
any time exceed the sum of (A) the Available Commitments at such
time plus (B) the "Available Commitments" under (and as defined in)
the Other Credit Agreement at such time plus (C) the aggregate face
amount of the Borrower's commercial paper notes outstanding at such
time.
(i) Maintenance of Ownership of Significant
Subsidiaries. Sell, assign, transfer, pledge or otherwise dispose
of any shares of capital stock of any of its Significant
Subsidiaries or any warrants, rights or options to acquire such
capital stock, or permit any of its Significant Subsidiaries to
issue, sell or otherwise dispose of any shares of its capital stock
or the capital stock of any other of its Subsidiaries or any
warrants, rights or options to acquire such capital stock, except
(and only to the extent) as may be necessary to give effect to a
transaction permitted by subsection (e), above.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events (each an "Event of Default") shall occur and be continuing
after the applicable grace period and notice requirement (if any):
(a) The Borrower shall fail to pay any principal of any
Note when the same becomes due and payable; or
(b) The Borrower shall fail to pay any interest on any
Note or any other amount due under this Agreement for two days
after the same becomes due; or
(c) Any representation or warranty made by or on behalf
of the Borrower in any Loan Document or in any certificate or other
writing delivered pursuant thereto shall prove to have been
incorrect in any material respect when made or deemed made; or
(d) Any representation or warranty made by or on behalf
of the Parent in the Support Agreement or in any certificate or
other writing delivered pursuant thereto shall prove to have been
incorrect in any material respect when made or deemed made; or
(e) The Borrower shall fail to perform or observe any
term or covenant on its part to be performed or observed contained
in Section 5.02 (other than subsections (c), (d), (g), (i) or (j)
thereof), or the Parent shall fail to perform or observe any term
or covenant on its part to be performed or observed contained in
Section 1, 2 or 4 of the Support Agreement; or
(f) The Borrower shall fail to perform or observe any
other term or covenant on its part to be performed or observed
contained in Section 5.01, Section 5.02 or in any other Loan
Document, or the Parent shall fail to perform or observe any other
term or covenant on its part to be performed or observed contained
in the Support Agreement, and any such failure shall remain
unremedied, after written notice thereof shall have been given to
the Borrower by the Agent, for a period of 30 days; or
(g) The Parent or any of its Subsidiaries (including the
Borrower but excluding the Utilities) shall fail to pay any of its
Debt (including any interest or premium thereon but excluding Debt
evidenced by the Notes) aggregating $5,000,000 or more when due
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) and such failure shall continue after the
applicable grace period, if any, specified in any agreement or
instrument relating to such Debt; or any other default under any
agreement or instrument relating to any such Debt, or any other
event, shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt shall
be declared to be due and payable, or required to be prepaid (other
than by a regularly scheduled required prepayment) prior to the
stated maturity thereof as a result of a default or other similar
adverse event; or
(h) Any of the Utilities shall fail to pay any of its
Debt (including any interest or premium thereon) aggregating
$5,000,000 or more when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such
failure shall continue after the applicable grace period, if any,
specified in any agreement or instrument relating to such Debt; or
any such Debt shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof as a result of a
default or other similar adverse event; or
(i) The Borrower, the Parent or any of the Utilities
shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or
shall make an assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower, the
Parent or any of the Utilities seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of its
debts under any law relating to bankruptcy, insolvency, or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of its
property and, in the case of a proceeding instituted against the
Borrower, the Parent or any of the Utilities, either such
proceeding shall remain undismissed or unstayed for a period of 60
days or any of the actions sought in such proceeding (including
without limitation the entry of an order for relief against the
Borrower, the Parent or such Utility or the appointment of a
receiver, trustee, custodian or other similar official for the
Borrower, the Parent or such Utility or any of its property) shall
occur; or the Borrower, the Parent or any of the Utilities shall
take any corporate or other action to authorize any of the actions
set forth above in this subsection (i); or
(j) Any judgment or order for the payment of money equal
to or in excess of $5,000,000 shall be rendered against the Parent
or any of its Direct Subsidiaries (including, without limitation,
the Borrower and the Utilities) or their respective properties and
either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any
period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(k) The Support Agreement, after delivery thereof under
Article III, shall for any reason, except to the extent permitted
by the terms thereof, cease to be valid and binding on the Parent
or the Borrower; or
(l) Any Governmental Approval required in connection
with the execution, delivery and performance of the Loan Documents
shall be rescinded, revoked, otherwise terminated, or amended or
modified in any manner which is materially adverse to the interests
of the Lenders and the Agent; or
(m) Any ERISA Event shall have occurred with respect to
a Plan which could reasonably be expected to result in a material
liability to the Borrower, and, 30 days after notice thereof shall
have been given to the Borrower by the Agent or any Lender, such
ERISA Event shall still exist; or
(n) An "event of default" (as defined therein) shall
occur and be continuing under the Other Credit Agreement; or
(o) Except as contemplated by the Merger Agreement: (A)
any Person or "group" (within the meaning of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended) shall either
(1) acquire beneficial ownership of more than 50% of any
outstanding class of common stock of the Parent having ordinary
voting power in the election of directors of the Parent or (2)
obtain the power (whether or not exercised) to elect a majority of
the Parent's directors or (B) the Board of Directors of the Parent
shall not consist of a majority of Continuing Directors.
"Continuing Directors" shall mean the directors of the Parent on
the effective date of the Facility and each other director of the
Parent, if such other director's nomination for election to the
Board of Directors of the Parent is recommended by a majority of
the then Continuing Directors.
then, and in any such event, the Agent (i) shall at the request,
or may with the consent, of the holders of at least 66-2/3% in
principal amount of the A Advances then outstanding or, if no A
Advances are then outstanding, Banks having at least 66-2/3% of the
Commitments (without giving effect to any B Reduction), by notice
to the Borrower, declare the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent,
of the holders of at least 66-2/3% in principal amount of the
Advances then outstanding or, if no Advances are then outstanding,
Lenders having at least 66-2/3% of the Commitments, by notice to
the Borrower, declare the Notes (if any), all interest thereon and
all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the Commitments and the obligation of each
Lender to make Advances shall automatically be terminated and (B)
the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are
delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement or any other Loan Document
(including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion
or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and
such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required
to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement. The
Agent shall be deemed to have exercised reasonable care in the
administration and enforcement of this Agreement and the other Loan
Documents if it undertakes such administration and enforcement in a
manner substantially equal to that which Citibank, N.A. accords
credit facilities similar to the credit facility hereunder for
which it is the sole lender.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under or
in connection with this Agreement or any other Loan Document,
except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent:
(i) may treat the payee of any Note as the holder thereof until the
Agent receives and accepts a Lender Assignment entered into by the
Lender which is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (ii)
may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no
warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection
with this Agreement or any other Loan Document; (iv) shall not have
any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this
Agreement or any other Loan Document on the part of the Borrower or
the Parent or to inspect the property (including the books and
records) of the Borrower or the Parent; (v) shall not be
responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (vi) shall incur
no liability under or in respect of this Agreement or any other
Loan Document by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram,
cable or telex) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 7.03. Citibank, N.A. and Affiliates. With respect to
its Commitment, the Advances made by it and the Notes issued to it,
Citibank, N.A. shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though
it were not the Agent; and the term "Bank" or "Banks" and "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include
Citibank, N.A. in its individual capacity. Citibank, N.A. and its
Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business
with, the Borrower, the Parent any of its Subsidiaries and any
Person who may do business with or own securities of the Borrower,
the Parent or any such Subsidiary, all as if Citibank, N.A. were
not the Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
the Agent or any other Lender and based on the financial statements
referred to in Section 5(d) of the Support Agreement and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the Borrower),
ratably according to (a) on or before the Termination Date, the
respective principal amounts of the A Notes then held by each of
them (or if no A Notes are at the time outstanding or if any A
Notes are held by Persons which are not Lenders, ratably according
to the respective Percentages of the Lenders), or (b) after the
Termination Date, the respective principal amounts of the Notes
then held by each of them (or if no Notes are at the time
outstanding or if any Notes are held by Persons which are not
Lenders, ratably according to the respective unpaid principal
amounts of the Advances made by each Lender), from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of
this Agreement or any action taken or omitted by the Agent under
this Agreement, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by
the Majority Lenders, with any such resignation or removal to
become effective only upon the appointment of a successor Agent
pursuant to this Section 7.06. Upon any such resignation or
removal, the Majority Lenders shall have the right to appoint a
successor Agent, which shall be a Lender or shall be another
commercial bank or trust company reasonably acceptable to the
Borrower organized under the laws of the United States or of any
State thereof. If no successor Agent shall have been so appointed
by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a Lender or shall be another
commercial bank or trust company organized under the laws of the
United States of any State thereof reasonably acceptable to the
Borrower. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VII shall inure
to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Majority Lenders and, in the
case of any amendment, the Borrower, and then such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by
all the Lenders, do any of the following: (a) waive, modify or
eliminate any of the conditions specified in Section 3.01 or 3.02,
(b) increase the Commitments of the Lenders or subject the Lenders
to any additional obligations, (c) reduce the principal of, or
interest on, the A Notes, any Applicable Margin or any fees or
other amounts payable hereunder, (d) postpone any date fixed for
any payment of principal of, or interest on, the A Notes or any
fees or other amounts payable hereunder, (e) change the percentage
of the Commitments or of the aggregate unpaid principal amount of
the A Notes, or the number of Lenders, which shall be required for
the Lenders or any of them to take any action hereunder or
(f) amend this Section 8.01; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by
the Lenders making or maintaining such B Advances, do any of the
following: (a) waive, modify or eliminate any of the conditions to
any B Advance specified in Section 3.03, (b) reduce the principal
of, or interest on, any B Note or other amounts payable in respect
thereof, (c) postpone any date fixed for any payment of principal
of, or interest on, any B Note or any other amounts payable in
respect thereof; and provided, further, that no amendment, waiver
or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect
the rights or duties of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder and under the other Loan
Documents shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to the Borrower, at its address at
200 First Street, Cedar Rapids, Iowa 52401, Attention: Treasurer;
if to the Parent, at its address at 200 First Street, Cedar Rapids,
Iowa 52401, Attention: Treasurer; if to any Bank, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in
the Lender Assignment pursuant to which it became a Lender; and if
to the Agent, at its address at Two Pennsway, Ste. 200, New Castle,
Delaware 19720, Attention: Bank Loan Syndications; or, as to each
party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied, telegraphed, telexed
or cabled, be effective five days after being deposited in the
mails, or when delivered to the telegraph company, telecopied,
confirmed by telex answerback or delivered to the cable company,
respectively, except that notices and communications to the Agent
pursuant to Article II or VII shall not be effective until received
by the Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses, Taxes and Indemnification.
(a) The Borrower agrees to pay on demand all costs and expenses of
the Agent in connection with the preparation (including, without
limitation, printing costs), negotiation, execution, delivery,
modification and amendment of this Agreement and the other Loan
Documents, and the other documents and instruments to be delivered
hereunder and thereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Agent
with respect thereto and with respect to the administration of, and
advising the Agent as to its rights and responsibilities under,
this Agreement and the other Loan Documents. The Borrower further
agrees to pay on demand all costs and expenses, if any (including,
without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement and the other
Loan Documents and the other documents and instruments to be
delivered hereunder and thereunder, including, without limitation,
reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 8.04(a). In addition, the
Borrower shall pay any and all stamp and other taxes payable or
determined to be payable in connection with the execution and
delivery of this Agreement and the other Loan Documents, and the
other documents and instruments to be delivered hereunder and
thereunder, and agrees to save the Agent and each Lender harmless
from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes.
(b) If any payment of principal of, or Conversion of,
any Adjusted CD Rate Advance, Eurodollar Rate Advance or B Advance
is made other than on the last day of the Interest Period for such
A Advance or other than on the maturity date of such B Advance, as
a result of a payment or Conversion pursuant to Section 2.09(f),
2.10, 2.11, 2.12 or 2.14 or acceleration of the maturity of the
Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by any Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably incur
as a result of such payment or Conversion, including, without
limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold
each Lender, the Agent and their respective officers, directors,
employees, professional advisors and affiliates (each, an
"Indemnified Person") harmless from and against any and all claims,
damages, losses, liabilities, costs or expenses (including
reasonable attorney's fees and expenses, whether or not such
Indemnified Person is named as a party to any proceeding or is
otherwise subjected to judicial or legal process arising from any
such proceeding) which any of them may incur or which may be
claimed against any of them by any Person (except for such claims,
damages, losses, liabilities, costs and expenses resulting from
such Indemnified Person's gross negligence or willful misconduct):
(i) by reason of or in connection with the execution,
delivery or performance of any of the Loan Documents or any
transaction contemplated thereby, or the use by the Borrower
of the proceeds of any Extension of Credit;
(ii) in connection with any documentary taxes,
assessments or charges made by any governmental authority by
reason of the execution and delivery of any of the Loan
Documents;
(iii) in connection with or resulting from the
utilization, storage, disposal, treatment, generation,
transportation, release or ownership of any Hazardous
Substance (i) at, upon, or under any property of the Borrower
or any of its Affiliates or (ii) by or on behalf of the
Borrower or any of its Affiliates at any time and in any
place; or
(iv) by reason of or in connection with the Merger or any
of the transactions contemplated by the Merger Agreement.
(d) The Borrower's obligations under this Section 8.04
shall survive the repayment of all amounts owing to the Lenders
under the Notes and the termination of the Commitments. If and to
the extent that the obligations of the Borrower under this Section
8.04 are unenforceable for any reason, the Borrower agrees to make
the maximum contribution to the payment and satisfaction thereof
which is permissible under applicable law.
SECTION 8.05. Right of Set-off. (a) Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent by the
Majority Lenders specified by Section 6.01 to authorize the Agent
to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account
of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under any Loan Document and any
Note held by such Lender, irrespective of whether or not such
Lender shall have made any demand under such Loan Document or such
Note and although such obligations may be unmatured. Each Lender
agrees promptly to notify the Borrower after any such set-off and
application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section are in
addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
(b) The Borrower agrees that it shall have no right of
set-off, deduction or counterclaim in respect of its obligations
hereunder, and that the obligations of the Lenders hereunder are
several and not joint. Nothing contained herein shall constitute a
relinquishment or waiver of the Borrower's rights to any
independent claim that the Borrower may have against the Agent or
any Lender for the Agent's or such Lender's, as the case may be,
gross negligence or wilful misconduct, but no Lender shall be
liable for the conduct of the Agent or any other Lender, and the
Agent shall not be liable for the conduct of any Lender.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Agent and when the Agent shall have been notified in writing by
each Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent
and each Lender and their respective successors and assigns, except
that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent
of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each
Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning
Lender's rights and obligations under this Agreement, (ii) the
amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the
Lender Assignment with respect to such assignment) shall in no
event be less than the lesser of the amount of such Lender's then
remaining Commitment and $5,000,000 (except in the case of
assignments between Lenders at the time already parties hereto),
and (iii) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the
Register, a Lender Assignment, together with any Note or Notes
subject to such assignment and a processing and recordation fee of
$3,000. Promptly following its receipt of such Lender Assignment,
Note or Notes and fee, the Agent shall accept and record such
Lender Assignment in the Register. Upon such execution, delivery,
acceptance and recording, from and after the effective date
specified in each Lender Assignment, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Lender Assignment, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by
it pursuant to such Lender Assignment, relinquish its rights and be
released from its obligations under this Agreement (and, in the
case of a Lender Assignment covering all or the remaining portion
of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
Notwithstanding anything to the contrary contained in this
Agreement, any Lender may at any time assign all or any portion of
the Advances owing to it to any Affiliate of such Lender. No such
assignment, other than to an Eligible Assignee, shall release the
assigning Lender from its obligations hereunder.
(b) By executing and delivering a Lender Assignment, the
Lender assignor thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Lender Assignment, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with any Loan Document or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant thereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the
Parent or the performance or observance by the Borrower or the
Parent of any of its obligations under any Loan Document or any
other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred
to in Section 5(d) of the Support Agreement and such other
documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Lender
Assignment; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to
in Section 8.02 a copy of each Lender Assignment delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower,
the Parent, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by
an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Note or Notes subject to such
assignment, the Agent shall, if such Lender Assignment has been
completed and is in substantially the form of Exhibit 8.07 hereto,
(i) accept such Lender Assignment, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within 10 Business Days after its receipt
of such notice, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the surrendered Note or Notes
a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it pursuant to such Lender
Assignment and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new
Note or Notes shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Lender Assignment and
shall otherwise be in substantially the form of Exhibit 1.01A-1
hereto.
(e) Each Lender may sell participations to one or more
banks, financial institutions or other entities in all or a portion
of its rights and obligations under the Loan Documents (including,
without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes held by it); provided,
however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, and (iv) the
Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower or the Parent furnished to such Lender by or on behalf of
the Borrower or the Parent; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or
participant shall agree, in accordance with the terms of Section
8.08, to preserve the confidentiality of any Confidential
Information relating to the Borrower or the Parent received by it
from such Lender.
(g) If any Lender (or any bank, financial institution,
or other entity to which such Lender has sold a participation)
shall (i) make any demand for payment under Section 2.08 or 2.13,
(ii) give notice to the Agent pursuant to Section 2.14 or
(iii) determine not to extend the Termination Date in response to
any request by the Borrower pursuant to Section 2.18, then (A) in
the case of any demand made under clause (i), above, or the
occurrence of the event described in clause (ii), above, within 30
days after any such demand or occurrence (if, but only if, in the
case of any demanded payment described in clause (i), such demanded
payment has been made by the Borrower), and (B) in the case of the
occurrence of the event described in clause (iii), above, at any
time prior to the then-scheduled Termination Date, the Borrower
may, with the approval of the Agent (which approval shall not be
unreasonably withheld), and provided that no Event of Default or
Unmatured Default shall then have occurred and be continuing,
demand that such Lender assign in accordance with this Section 8.07
to one or more Eligible Assignees designated by the Borrower all
(but not less than all) of such Lender's Commitment and the
Advances owing to it within the period ending on the latest to
occur of (x) the last day in the period described in clause (A) or
(B), above, as applicable, (y) the last day of the longest of the
then current Interest Periods for such Advances, and (z) the latest
maturity date of any B Advances owing to such Lender. If any such
Eligible Assignee designated by the Borrower shall fail to
consummate such assignment on terms acceptable to such Lender, or
if the Borrower shall fail to designate any such Eligible Assignees
for all or part of such Lender's Commitment or Advances, then such
demand by the Borrower shall become ineffective; it being
understood for purposes of this subsection (g) that such assignment
shall be conclusively deemed to be on terms acceptable to such
Lender, and such Lender shall be compelled to consummate such
assignment to an Eligible Assignee designated by the Borrower, if
such Eligible Assignee (1) shall agree to such assignment by
entering into a Lender Assignment with such Lender and (2) shall
offer compensation to such Lender in an amount equal to all amounts
then owing by the Borrower to such Lender hereunder and under the
Note made by the Borrower to such Lender, whether for principal,
interest, fees, costs or expenses (other than the demanded payment
referred to above and payable by the Borrower as a condition to the
Borrower's right to demand such assignment), or otherwise.
(h) Anything in this Section 8.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to any
Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
SECTION 8.08. Confidentiality. In connection with the
negotiation and administration of this Agreement and the other Loan
Documents, the Borrower and the Parent have furnished and will from
time to time furnish to the Agent and the Lenders (each, a
"Recipient") written information which is identified to the
Recipient in writing when delivered as confidential (such
information, other than any such information which (i) as publicly
available, or otherwise known to the Recipient, at the time of
disclosure, (ii) subsequently becomes publicly available other than
through any act or omission by the Recipient or (iii) otherwise
subsequently becomes known to the Recipient other than through a
Person whom the Recipient knows to be acting in violation of his or
its obligations to the Borrower or the Parent, being hereinafter
referred to as "Confidential Information"). The Recipient will
maintain the confidentiality of any Confidential Information in
accordance with such procedures as the Recipient applies generally
to information of that nature. It is understood, however, that the
foregoing will not restrict the Recipient's ability to freely
exchange such Confidential Information with current or prospective
participants in or assignees of the Recipient's position herein,
but the Recipient's ability to so exchange Confidential Information
shall be conditioned upon any such prospective participant's or
assignee's entering into an understanding as to confidentiality
similar to this provision. It is further understood that the
foregoing will not prohibit the disclosure of any or all
Confidential Information if and to the extent that such disclosure
may be required (i) by a regulatory agency or otherwise in
connection with an examination of the Recipient's records by
appropriate authorities, (ii) pursuant to court order, subpoena or
other legal process or in connection with any pending or threatened
litigation, (iii) otherwise as required by law, or (iv) in order to
protect its interests or its rights or remedies hereunder or under
the other Loan Documents; in the event of any required disclosure
under clause (ii) or (iii), above, the Recipient agrees to use
reasonable efforts to inform the Borrower and the Parent as
promptly as practicable.
SECTION 8.09. WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS,
THE BORROWER AND THE PARENT HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF THE AGENT, SUCH LENDERS, THE
BORROWER OR THE PARENT. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT.
SECTION 8.10. Consent. Unless otherwise specified as being
within the sole discretion of the Agent, the Lenders the Majority
Lenders or the Borrower, whenever the consent or approval of the
Agent, the Lenders, the Majority Lenders or the Borrower,
respectively, is required herein, such consent or approval shall
not be unreasonably withheld or delayed.
SECTION 8.11. Governing Law. This Agreement and the other
Loan Documents shall be governed by, and construed in accordance
with, the laws of the State of New York. The Borrower, the Parent,
each Lender, and the Agent (i) irrevocably submits to the
non-exclusive jurisdiction of any New York State court or Federal
court sitting in New York City in any action arising out of any
Loan Document, (ii) agrees that all claims in such action may be
decided in such court, (iii) waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum and (iv)
consents to the service of process by mail. A final judgment in
any such action shall be conclusive and may be enforced in other
jurisdictions. Nothing herein shall affect the right of any party
to serve legal process in any manner permitted by law or affect its
right to bring any action in any other court.
SECTION 8.12. Relation of the Parties; No Beneficiary. No
term, provision or requirement, whether express or implied, of any
Loan Document, or actions taken or to be taken by any party
thereunder, shall be construed to create a partnership,
association, or joint venture between such parties or any of them.
No term or provision of the Loan Documents shall be construed to
confer a benefit upon, or grant a right or privilege to, any Person
other than the parties thereto.
SECTION 8.13. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
IES DIVERSIFIED INC.
By /s/ Dennis B. Vass
Title: Treasurer
CITIBANK, N.A.,
as Agent
By /s/ Anita J. Brickell
Title: Attorney-In-Fact
Bank
CITIBANK, N.A.
By /s/ Anita J. Brickell
Title: Attorney-In-Fact
Bank
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Madeleine N. Pember
Title: Corporate Banking Officer
SCHEDULE I
IES DIVERSIFIED INC.
3-Year Credit Agreement, dated as of October 20, 1997, among
IES Diversified Inc., the Banks named therein and Citibank, N.A.,
as Agent
Name of Bank Commitment Domestic Lending Office CD Lending Eurodollar
Office Lending
Office
Citibank, N.A. $225,000,000 Two Pennsway, Ste. 200, Same as Same as
New Castle, Domestic Domestic
Delware 19720 Lending Lending
Attention: Bank Office Office Office
Loan Syndications
The First $225,000,000 One First National Same as Same as
National Bank Plaza, Suite 0363 Domestic Domestic
of Chicago Chicago, Illinois Lending Lending
60670-0363 Office Office
Telephone: 312.732.9780
Telecopy: 312.732.3055 /
312.732.6485
Attention:
Robert G. Bussa
SCHEDULE II
SCHEDULE III
EXHIBIT 4(g)
[Conformed Copy]
$150,000,000
364-DAY
CREDIT AGREEMENT
Dated as of October 20, 1997
Among
IES DIVERSIFIED INC.
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
FIRST CHICAGO CAPITAL MARKETS, INC.
as Syndication Agent
and
CITIBANK, N.A.
as Agent
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
....................................................................... 2
SECTION 1.01. Certain Defined Terms. ................................ 2
SECTION 1.02. Computation of Time Periods ........................... 21
SECTION 1.03. Computations of Outstandings .......................... 21
SECTION 1.04. Accounting Terms ...................................... 22
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
....................................................................... 22
SECTION 2.01. The A Advances ........................................ 22
SECTION 2.02. Making the A Advances. ................................ 22
SECTION 2.03. The B Advances ........................................ 24
SECTION 2.04. Fees .................................................. 28
SECTION 2.05. Reduction of the Commitments .......................... 28
SECTION 2.06. Repayment of A Advances ............................... 29
SECTION 2.07. Interest on A Advances ................................ 29
SECTION 2.08. Additional Interest on Eurodollar Rate Advances ....... 30
SECTION 2.09. Interest Rate Determination ........................... 30
SECTION 2.10. Voluntary Conversion of A Advances .................... 33
SECTION 2.11. Optional Prepayments of Advances ...................... 34
SECTION 2.12. Mandatory Prepayments ................................. 34
SECTION 2.13. Increased Costs ....................................... 35
SECTION 2.14. Illegality ............................................ 36
SECTION 2.15. Payments and Computations ............................. 37
SECTION 2.16. Taxes ................................................. 38
SECTION 2.17. Sharing of Payments, Etc. ............................. 40
SECTION 2.18. Extension of Revolving Period; Term Election .......... 41
ARTICLE III
CONDITIONS OF LENDING
....................................................................... 42
SECTION 3.01. Conditions Precedent to Closing ....................... 42
SECTION 3.02. Conditions Precedent to Each A Borrowing .............. 45
SECTION 3.03. Conditions Precedent to Each B Borrowing .............. 46
SECTION 3.04. Reliance on Certificates .............................. 47
ARTICLE IV
REPRESENTATIONS AND WARRANTIES ....................................... 47
SECTION 4.01. Representations and Warranties of the Borrower ........ 47
ARTICLE V
COVENANTS OF THE BORROWER ............................................ 50
SECTION 5.01. Affirmative Covenants ................................. 50
SECTION 5.02. Negative Covenants .................................... 55
ARTICLE VI
EVENTS OF DEFAULT .................................................... 60
SECTION 6.01. Events of Default ..................................... 60
ARTICLE VII
THE AGENT ............................................................ 64
SECTION 7.01. Authorization and Action .............................. 64
SECTION 7.02. Agent's Reliance, Etc ................................. 64
SECTION 7.03. Citibank, N.A. and Affiliates ......................... 65
SECTION 7.04. Lender Credit Decision ................................ 65
SECTION 7.05. Indemnification ....................................... 66
SECTION 7.06. Successor Agent ....................................... 66
ARTICLE VIII
MISCELLANEOUS ........................................................ 67
SECTION 8.01. Amendments, Etc ....................................... 67
SECTION 8.02. Notices, Etc .......................................... 68
SECTION 8.03. No Waiver; Remedies ................................... 68
SECTION 8.04. Costs, Expenses, Taxes and Indemnification ............ 68
SECTION 8.05. Right of Set-off ...................................... 70
SECTION 8.06. Binding Effect ........................................ 71
SECTION 8.07. Assignments and Participations ........................ 71
SECTION 8.08. Confidentiality ....................................... 75
SECTION 8.09. WAIVER OF JURY TRIAL .................................. 76
SECTION 8.10. Consent ............................................... 76
SECTION 8.11. Governing Law ......................................... 76
SECTION 8.12. Relation of the Parties; No Beneficiary ............... 76
SECTION 8.13. Execution in Counterparts ............................. 77
364-DAY
CREDIT AGREEMENT
Dated as of October 20, 1997
THIS 364-DAY CREDIT AGREEMENT (this "Agreement") is made by
and among:
(i) IES DIVERSIFIED INC., an Iowa corporation (the
"Borrower", which term shall include, following
consummation of the Merger referred to herein, Heartland
Development Corporation as successor by merger), all of
whose common stock is owned on the date hereof by the
Parent (as hereinafter defined),
(ii) the banks (the "Banks") listed on the signature
pages hereof and the other Lenders (as hereinafter
defined) from time to time party hereto, and
(iii) CITIBANK, N.A., as agent (the "Agent") for the
Lenders hereunder.
PRELIMINARY STATEMENTS
(1) The Borrower, certain banks (the "Existing Banks") and
Citibank, N.A., as agent for the Existing Banks, are parties to
that certain Third Amended and Restated Credit Agreement, dated as
of November 20, 1996 (the "Existing Facility").
(2) The Borrower desires to replace the Existing Facility
with the revolving credit facilities created under this Agreement
and the Other Credit Agreement referred to herein.
(3) The Banks and the Agent are prepared to provide such
facilities on the terms and conditions set forth herein, including
but not limited to the condition that the Parent provide the
Support Agreement described herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"A Advance" means an advance by a Lender to the Borrower
as part of an A Borrowing and refers to an Adjusted CD Rate
Advance, a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of
simultaneous A Advances of the same Type, having the same
Interest Period and ratably made or Converted on the same day
by each of the Lenders pursuant to Section 2.02 or 2.10, as
the case may be. All Advances of the same Type, having the
same Interest Period and made or Converted on the same day
shall be deemed a single Borrowing hereunder until repaid or
next Converted.
"A Note" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of
Exhibit 1.01A-1 hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the A Advances
made by such Lender.
"Adjusted CD Rate" means, for any Interest Period for
each Adjusted CD Rate Advance made as part of the same A
Borrowing, an interest rate per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the
rate of interest determined by the Agent to be the
average (rounded upward to the nearest whole multiple of
1/100 of 1% per annum, if such average is not such a
multiple) of the consensus bid rate determined by each of
the Reference Banks for the bid rates per annum at 9:00
a.m. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period of
New York certificate of deposit dealers of recognized
standing selected by such Reference Bank for the purchase
at face value of certificates of deposit of such
Reference Bank in an amount substantially equal to such
Reference Bank's Adjusted CD Rate Advance made as part of
such A Borrowing and maturing on the last day of such
Interest Period, by (ii) a percentage equal to 100% minus
the Adjusted CD Rate Reserve Percentage (as defined
below) for such Interest Period, plus
(b) the Assessment Rate (as defined below) for such
Interest Period.
The "Adjusted CD Rate Reserve Percentage" for the Interest
Period for each Adjusted CD Rate Advance comprising part of
the same A Borrowing means the reserve percentage applicable
on the first day of such Interest Period, as determined by the
Agent, under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including,
but not limited to, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with deposits exceeding one
billion dollars with respect to liabilities consisting of or
including (among other liabilities) U.S. dollar nonpersonal
time deposits in the United States with a maturity equal to
such Interest Period. The "Assessment Rate" for the Interest
Period for each Adjusted CD Rate Advance comprising part of
the same A Borrowing means the annual assessment rate
estimated by the Agent on the first day of such Interest
Period for determining the then current annual assessment
payable by the Agent to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar
deposits of the Agent in the United States. The Adjusted CD
Rate for the Interest Period for each Adjusted CD Rate Advance
comprising part of the same A Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks on the first
day of such Interest Period, subject, however, to the
provisions of Section 2.09.
"Adjusted CD Rate Advance" means an A Advance which bears
interest as provided in Section 2.07(b).
"Advance" means an A Advance or a B Advance.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not
limited to all directors and officers of such Person),
controlled by, or under direct or indirect common control with
such Person. A Person shall be deemed to control another
entity if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and
policies of such entity, whether through the ownership of
voting securities, by contract, or otherwise.
"Alternate Base Rate" means a fluctuating interest rate
per annum as shall be in effect from time to time which rate
per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by
Citibank, N.A. in New York, New York, from time to time,
as Citibank, N.A.'s base rate; and
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
Each change in the Alternate Base Rate shall take effect
concurrently with any change in such base rate or the Federal
Funds Rate.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case
of an Adjusted CD Rate Advance and such Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Advance and,
in the case of a B Advance, the office of such Lender notified
by such Lender to the Agent as its Applicable Lending Office
with respect to such B Advance.
"Applicable Margin" means, for a Eurodollar Rate Advance,
an Adjusted CD Rate Advance or Base Rate Advance, the number
of basis points set forth below in the columns identified as
Level 1, Level 2, Level 3 or Level 4 below, opposite the rate
applicable to such Advance.
Level 1 Level 2 Level 3 Level 4
S&P A- or better BBB+ BBB below BBB*
and and and or
Moody's A3 or better Baa1 Baa2 below
Baa2*
Basis Points Per Annum
Eurodollar Rate 27.5 30.0 35.0 75.0
Adjusted CD Rate 40.0 42.5 47.5 82.5
Base Rate Advance 0 0 0 50.0
* or unrated
The Applicable Margin will be based upon the Level
corresponding to the Reference Ratings at the time of
determination. Any change in the Applicable Margin resulting
from a change in the Reference Ratings shall be effective as
of the Borrowing date following the date on which the
applicable rating agency announces the applicable change in
ratings. If the Merger shall not have been consummated on or
before December 31, 1997, the Applicable Margins shown for
Level 2 shall apply to Level 1; those shown for Level 3 shall
apply to Level 2 and those shown for Level 4 shall apply to
Level 3. If the Merger is thereafter consummated, the
Applicable Margins for the various Levels shall revert to
those shown above, effective from the date of such
consummation. Any change in the Applicable Margin resulting
from the application of either or both of the two preceding
sentences shall be effective immediately.
"Applicable Rate" means:
(i) in the case of each Base Rate Advance, a rate per
annum equal at all times to the sum of the Alternate Base Rate
in effect from time to time plus the Applicable Margin in
effect from time to time;
(ii) in the case of each Adjusted CD Rate Advance
comprising part of the same A Borrowing, a rate per annum
during each Interest Period equal at all times to the sum of
the Adjusted CD Rate for such Interest Period plus the
Applicable Margin in effect from time to time during such
Interest Period; and
(iii) in the case of each Eurodollar Rate Advance
comprising part of the same A Borrowing, a rate per annum
during each Interest Period equal at all times to the sum of
the Eurodollar Rate for such Interest Period plus the
Applicable Margin in effect from time to time during such
Interest Period.
"Available Commitment" means, for each Lender at any time
on any day, the unused portion of such Lender's Commitment,
computed after giving effect to all Extensions of Credit made
or to be made on such day, the application of proceeds
therefrom and all prepayments and repayments of Advances made
on such day.
"Available Commitments" means the aggregate of the
Lenders' Available Commitments hereunder.
"B Advance" means an advance by a Lender to the Borrower
as part of a B Borrowing resulting from the auction bidding
procedure described in Section 2.03.
"B Borrowing" means a borrowing consisting of
simultaneous B Advances from each of the Lenders whose offer
to make one or more B Advances as part of such borrowing has
been accepted by the Borrower under the auction bidding
procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of
Exhibit 1.01A-2 hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from a B Advance(s)
made by such Lender.
"B Reduction" has the meaning assigned to that term in
Section 2.01.
"Base Rate Advance" means an A Advance that bears
interest as provided in Section 2.07(a).
"Borrowing" means an A Borrowing or a B Borrowing. Any A
Borrowing consisting of A Advances of a particular Type may be
referred to as being an A Borrowing of such "Type".
"Business Day" means a day of the year on which banks are
not required or authorized to close in New York City, Chicago,
Illinois or Cedar Rapids, Iowa, and, if the applicable
Business Day relates to any Eurodollar Rate Advance, on which
dealings are carried on in the London interbank market.
"CD Lending Office" means, with respect to any Lender,
the office or affiliate of such Lender specified as its "CD
Lending Office" opposite its name on Schedule I hereto or in
the Lender Assignment pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending
Office) or such other office or affiliate of such Lender as
such Lender may from time to time specify to the Borrower and
the Agent.
"Capitalized Lease Obligations" means obligations to pay
rent or other amounts under any lease of (or other arrangement
conveying the right to use) real and/or personal property
which obligation is required to be classified and accounted
for as a capital lease on a balance sheet prepared in
accordance with generally accepted accounting principles, and
for purposes hereof the amount of such obligations shall be
the capitalized amount determined in accordance with such
principles.
"Cash and Cash Equivalents" means, with respect to any
Person, the aggregate amount of the following, to the extent
owned by such Person free and clear of all Liens, encumbrances
and rights of others and not subject to any judicial,
regulatory or other legal constraint: (i) cash on hand;
(ii) Dollar demand deposits maintained in the United States
with any commercial bank and Dollar time deposits maintained
in the United States with, or certificates of deposit having a
maturity of one year or less issued by, any commercial bank
which has its head office in the United States and which has a
combined capital and surplus of at least $100,000,000;
(iii) eurodollar time deposits maintained in the United States
with, or eurodollar certificates of deposit having a maturity
of one year or less issued by, any commercial bank having
outstanding unsecured indebtedness that is rated (on the date
of acquisition thereof) A- or better by S&P or A3 or better by
Moody's (or an equivalent rating by another
nationally-recognized credit rating agency of similar standing
if neither of such corporations is then in the business of
rating unsecured bank indebtedness); (iv) direct obligations
of, or unconditionally guaranteed by, the United States and
having a maturity of one year or less; (v) commercial paper
rated (on the date of acquisition thereof) A-1 or P-1 or
better by S&P or Moody's, respectively (or an equivalent
rating by another nationally-recognized credit rating agency
of similar standing if neither of such corporations is then in
the business of rating commercial paper), and having a
maturity of one year or less; (vi) obligations with any Lender
or any other commercial bank in respect of the repurchase of
obligations of the type described in clause (iv), above,
provided that such repurchase obligations shall be fully
secured by obligations of the type described in said clause
(iv) and the possession of such obligations shall be
transferred to, and segregated from other obligations owned
by, such Lender or such other commercial bank; and
(vii) preferred stock of any Person that is rated A- or better
by S&P or A3 or better by Moody's (or an equivalent rating by
another nationally-recognized credit rating agency of similar
standing if neither of such corporations is then in the
business of rating preferred stock of entities engaged in such
businesses).
"Closing" means the day upon which each of the
applicable conditions precedent enumerated in Section 3.01
shall be fulfilled to the satisfaction of, or waived with the
consent of, the Lenders, the Agent and the Borrower. All
transactions contemplated by the Closing shall take place on a
Business Day on or prior to October 20, 1997, at the offices
of King & Spalding, 1185 Avenue of the Americas, New York, New
York 10036, at 10:00 a.m., or such later Business Day as the
parties hereto may mutually agree.
"Commitment" means, for each Lender, the obligation of
such Lender to make Advances to the Borrower in an amount no
greater than the amount set forth on Schedule I hereto or, if
such Lender has entered into one or more Lender Assignments,
set forth for such Lender in the Register maintained by the
Agent pursuant to Section 8.07(c), in each such case as such
amount may be reduced from time to time pursuant to Section
2.05. "Commitments" means the total of the Lenders'
Commitments hereunder. The Commitments shall in no event
exceed $150,000,000.
"Consolidated Capital" means, with respect to any Person,
at any date of determination, the sum of (c) Consolidated Debt
of such Person, (d) consolidated equity of the common
stockholders of such Person and its Consolidated Subsidiaries,
(e) consolidated equity of the preference stockholders of such
Person and its Consolidated Subsidiaries and (f) consolidated
equity of the preferred stockholders of such Person and its
Consolidated Subsidiaries, in each case determined at such
date in accordance with generally accepted accounting
principles.
"Consolidated Debt" means, with respect to any Person, at
any date of determination, the aggregate Debt of such Person
and its Consolidated Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting
principles, but shall not include Nonrecourse Debt of any
Subsidiary of the Borrower.
"Consolidated Subsidiary" means, with respect to any
Person, any Subsidiary of such Person whose accounts are or
are required to be consolidated with the accounts of such
Person in accordance with generally accepted accounting
principles.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of another
Type, or to the selection of a new, or the renewal of the
same, Interest Period for Advances, as the case may be,
pursuant to Section 2.09 or 2.10.
"Debt" means, for any Person, any and all indebtedness,
liabilities and other monetary obligations of such Person
(i) for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments, (ii) to pay the deferred
purchase price of property or services (except trade accounts
payable arising and repaid in the ordinary course of
business), (iii) Capitalized Lease Obligations, (iv) under
reimbursement or similar agreements with respect to letters of
credit (other than trade letters of credit) issued to support
indebtedness or obligations of such Person or of others of the
kinds referred to in clauses (i) through (iii), above, and
clause (v), below, (v) reasonably quantifiable obligations
under direct guaranties or indemnities, or under support
agreements, in respect of, and reasonably quantifiable
obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in
respect of, or to assure an obligee against failure to make
payment in respect of, indebtedness or obligations of others
of the kinds referred to in clauses (i) through (iv), above,
and (vi) in respect of unfunded vested benefits under Plans.
In determining Debt for any Person, there shall be included
accrued interest on the principal amount thereof to the extent
such interest has accrued for more than six months.
"Default Rate" means (i) with respect to the unpaid
principal of or interest on any Advance, the greater of (A) 2%
per annum above the Applicable Rate in effect from time to
time for such Advance and (B) 2% per annum above the
Applicable Rate in effect from time to time for Base Rate
Advances and (ii) with respect to any other unpaid amount
hereunder, 2% per annum above the Applicable Rate in effect
from time to time for Base Rate Advances.
"Direct Subsidiary" means, with respect to any Person,
any Subsidiary directly owned by such Person.
"Dollars" and the sign "$" each means lawful money of the
United States.
"Domestic Lending Office" means, with respect to any
Lender, the office or affiliate of such Lender specified as
its "Domestic Lending Office" opposite its name on Schedule I
hereto or in the Lender Assignment pursuant to which it became
a Lender, or such other office or affiliate of such Lender as
such Lender may from time to time specify in writing to the
Borrower and the Agent.
"Eligible Assignee" means (a) a commercial bank or trust
company organized under the laws of the United States, or any
State thereof; (b) a commercial bank organized under the laws
of any other country that is a member of the OECD, or a
political subdivision of any such country, provided that such
bank is acting through a branch or agency located in the
United States; (c) the central bank of any country that is a
member of the OECD; and (d) any other commercial bank or other
financial institution engaged generally in the business of
extending credit or purchasing debt instruments; provided,
however, that (A) any such Person shall also (i) have
outstanding unsecured indebtedness that is rated A- or better
by S&P or A3 or better by Moody's (or an equivalent rating by
another nationally-recognized credit rating agency of similar
standing if neither of such corporations is then in the
business of rating unsecured indebtedness of entities engaged
in such businesses) or (ii) have combined capital and surplus
(as established in its most recent report of condition to its
primary regulator) of not less than $250,000,000 (or its
equivalent in foreign currency), (B) any Person described in
clause (b), (c), or (d), above, shall, on the date on which it
is to become a Lender hereunder, (i) be entitled to receive
payments hereunder without deduction or withholding of any
United States Federal income taxes (as contemplated by Section
2.16) and (ii) not be incurring any losses, costs or expenses
of the type for which such Person could demand payment under
Section 2.13, and (C) any Person described in clauses (b), (c)
and (d), above, shall, in addition, be reasonably acceptable
to the Agent and the Borrower.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means, with respect to any Person, any
trade or business (whether or not incorporated) which is a
member of a group of which such Person is a member and which
is under common control within the meaning of the regulations
under Section 414(b) or (c) of the Internal Revenue Code of
1986, as amended from time to time.
"ERISA Event" means (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, unless the
30-day notice requirement with respect thereto has been waived
by the PBGC; (ii) the provision by the administrator of any
Plan of notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of
ERISA); (iii) the cessation of operations at a facility in the
circumstances described in Section 4062(e) of ERISA; (iv) the
withdrawal by the Borrower or an ERISA Affiliate of the
Borrower from a Multiple Employer Plan during a plan year for
which it was a "substantial employer", as defined in Section
4001(a)(2) of ERISA; (v) the failure by the Borrower or an
ERISA Affiliate of the Borrower to make a payment to a Plan
required under Section 302(f)(1) of ERISA, which failure
results in the imposition of a lien for failure to make
required payments; (vi) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant to
Section 307 of ERISA; or (vii) the institution by the PBGC of
proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition which might
reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office or affiliate of such Lender specified as
its "Eurodollar Lending Office" opposite its name on Schedule
I hereto or in the Lender Assignment pursuant to which it
became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office or affiliate of
such Lender as such Lender may from time to time specify in
writing to the Borrower and the Agent.
"Eurodollar Rate" means, for each Interest Period for
each Eurodollar Rate Advance made as part of the same A
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00
a.m. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance made as part of such
A Borrowing and for a period equal to such Interest Period.
The Eurodollar Rate for the Interest Period for each
Eurodollar Rate Advance made as part of the same A Borrowing
shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Section 2.09.
"Eurodollar Rate Advance" means an A Advance that bears
interest as provided in Section 2.07(c).
"Eurodollar Reserve Percentage" of any Lender for each
Interest Period for each Eurodollar Rate Advance means the
reserve percentage applicable to such Lender during such
Interest Period (or if more than one such percentage shall be
so applicable, the daily average of such percentages for those
days in such Interest Period during which any such percentage
shall be so applicable) under Regulation D or other
regulations issued from time to time by the Board of Governors
of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other
marginal reserve requirement) then applicable to such Lender
with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to such
Interest Period.
"Events of Default" has the meaning assigned to that term
in Section 6.01.
"Existing Banks" has the meaning assigned to that term in
Preliminary Statement (1) to this Agreement.
"Existing Facility" has the meaning assigned to that term
in Preliminary Statement (1) to this Agreement.
"Extension of Credit" means the making of a Borrowing.
For purposes of this Agreement, a Conversion shall not
constitute an Extension of Credit.
"Facility Fee" means a fee which shall be payable on the
aggregate amount of the Commitments, irrespective of usage, to
each Lender pro rata on the amount of their respective
Commitments at the rate (expressed in basis points per annum)
set forth below in the columns identified as Level 1, Level 2,
Level 3 or Level 4, based on the Reference Ratings.
Level 1 Level 2 Level 3 Level 4
S&P A- or better BBB+ BBB below BBB*
Moody's and and and or
A3 or better Baa1 Baa2 below
Baa2*
Basis Points 12.5 15.0 20.0 25.0
* or unrated
The Facility Fee will be based upon the Level corresponding to
the Reference Ratings at the time of determination. Any
change in the Facility Fee resulting from a change in the
Reference Ratings shall be effective as of the date on which
the applicable rating agency announces the applicable change
in ratings. If the Merger shall not have been consummated on
or before December 31, 1997, the Facility Fee rate shown for
Level 2 shall apply to Level 1; that shown for Level 3 shall
apply to Level 2 and that shown for Level 4 shall apply to
Level 3. If the Merger is thereafter consummated, the
Facility Fee rates for the various Levels shall revert to
those shown above, effective from the date of such
consummation. Any change in the Applicable Margin resulting
from the application of either or both of the two preceding
sentences shall be effective immediately.
"FDIC Assessment Rate" mean, during an Interest Period
for CD Rate Advances comprising a single Borrowing, the annual
rate (rounded upwards, if necessary, to the next 1/100 of 1%)
most recently estimated by the Agent as the then current
annual assessment rate payable by the Agent to the Federal
Deposit Insurance Corporation (or any successor) for insurance
by such Corporation (or such successor) of time deposits made
in U.S. dollars at the Agent's domestic offices. The FDIC
Assessment Rate shall be the same for all CD Rate Advances
comprising the same Borrowing and shall be adjusted
automatically on and as of he effective date of each change in
any such rate.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period
to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" means that certain letter agreement, dated
October 17, 1997, among the Borrower, the Agent and Citicorp
Securities, Inc.
"Governmental Approval" means any authorization, consent,
approval, license, franchise, lease, ruling, tariff, rate,
permit, certificate, exemption of, or filing or registration
with, any governmental authority or other legal or regulatory
body.
"Hazardous Substance" means any waste, substance, or
material identified as hazardous, dangerous or toxic by any
office, agency, department, commission, board, bureau, or
instrumentality of the United States or of the State or
locality in which the same is located having or exercising
jurisdiction over such waste, substance or material.
"IES Utilities" means IES Utilities Inc., an Iowa
corporation, all of whose common stock is owned on the date
hereof by the Parent.
"Information Memorandum" means the Confidential
Information Memorandum relating to this Agreement and the
Other Credit Agreement delivered (or to be delivered) by
Citicorp Securities, Inc. and First Chicago Capital Markets,
Inc. at the direction of the Borrower and the Parent to the
Lenders.
"Interest Period" means, for each A Advance made as part
of the same A Borrowing, the period commencing on the date of
such A Advance or the date of the Conversion of any A Advance
into such an A Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such
Interest Period shall be 30, 60, 90 or 180 days in the case of
an Adjusted CD Rate Advance, and 1, 2, 3 or 6 months in the
case of a Eurodollar Rate Advance, in each case as the
Borrower may, upon notice received by the Agent not later than
12:00 noon (New York City time) (a) on the third Business Day
prior to the first day of such Interest Period in the case of
a Eurodollar Rate Advance and (b) on the second Business Day
prior to the first day of such Interest Period in the case of
an Adjusted CD Rate Advance, select; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date (or, if the Borrower
shall make the Term Election, the Termination Date as
extended pursuant to Section 2.18);
(ii) Interest Periods commencing on the same date
for A Advances comprising part of the same A Borrowing
shall be of the same duration; and
(iii) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day,
provided, in the case of any Interest Period for a
Eurodollar Rate Advance, that if such extension would
cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day.
"IPC" means Interstate Power Company, a Delaware
corporation.
"Lenders" means the Banks listed on the signature pages
hereof and each Eligible Assignee that shall become a party
hereto pursuant to Section 8.07.
"Lender Assignment" means an assignment and acceptance
agreement entered into by a Lender and an Eligible Assignee,
and accepted by the Agent, in substantially the form of
Exhibit 8.07.
"Lien" has the meaning assigned to that term in Section
5.02(a).
"Loan Documents" means this Agreement, the Notes, the
Support Agreement, the Fee Letter and all other agreements,
instruments and documents now or hereafter executed and/or
delivered pursuant hereto or thereto.
"Majority Lenders" means, on any date of determination,
Lenders that, collectively, on such date (i) hold at least 66-
2/3% of the then aggregate unpaid principal amount of the A
Advances owing to Lenders and (ii) if no A Advances are then
outstanding, have Percentages in the aggregate of at least 66-
2/3%. Any determination of those Lenders constituting the
Majority Lenders shall be made by the Agent and shall be
conclusive and binding on all parties absent manifest error.
"McLeodUSA Stock" means the 8,977,600 shares of common
stock of McLeodUSA Incorporated, a Delaware corporation, held
by the Borrower as of the date of this Agreement.
"Merger" means the merger of the Parent with and into
WPL and the merger of the Borrower with and into Heartland
Development Corporation, pursuant to an Agreement and Plan of
Merger, dated as of November 10, 1995, as amended (the "Merger
Agreement"), with the result that the Borrower, IES Utilities,
Wisconsin Power and IPC will be wholly-owned Subsidiaries of
WPL, which will be renamed Interstate Energy Corporation.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, which is subject to
Title IV of ERISA and to which the Borrower or any ERISA
Affiliate of the Borrower is making or accruing an obligation
to make contributions, or has within any of the preceding five
plan years made or accrued an obligation to make
contributions, such plan being maintained pursuant to one or
more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which is subject to
Title IV of ERISA and which (i) is maintained for employees of
the Borrower or an ERISA Affiliate of the Borrower and at
least one Person other than the Borrower and its ERISA
Affiliates or (ii) was so maintained and in respect of which
the Borrower or an ERISA Affiliate of the Borrower could have
liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Nonrecourse Debt" means any Debt that finances the
acquisition, development, ownership or operation of an asset
in respect of which the Person to which such Debt is owed has
no recourse whatsoever to the Borrower or any of its
Affiliates other than:
(i) recourse to the named obligor with respect to such
Debt (the "Debtor") for amounts limited to the cash
flow or net cash flow (other than historic cash flow
or historic cash flow) from the asset; and
(ii) recourse to the Debtor for the purpose
only of enabling amounts to be claimed in respect of
such Debt in an enforcement of any security interest
or lien given by the Debtor over the asset or the
income, cash flow or other proceeds deriving from
the asset (or given by any shareholder or the like
in the Debtor over its shares or like interest in
the capital of the Debtor) to secure the Debt, but
only if:
(A) the extent of the recourse to the Debtor is
limited solely to the amount of any recoveries
made on any such enforcement; and
(B) the Person to which such Debt is owed is not
entitled, by virtue of any right or claim
arising out of or in connection with such Debt,
to commence proceedings for the winding up or
dissolution of the Debtor or to appoint or
procure the appointment of any receiver,
trustee, or similar Person or officer in
respect of the Debtor or any of its assets
(other than the assets subject to the security
interest or lien referred to above); and
(iii) recourse to the Debtor generally or indirectly
to any Affiliate of the Debtor, under any form of
assurance, undertaking or support, which recourse is
limited to a claim for damages (other than
liquidated damages and damages required to be
calculated in a specified way) for a breach of an
obligation (other than a payment obligation or an
obligation to comply or to procure compliance by
another with any financial ratios or other tests of
financial condition) by the Person against which
such recourse is available.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning assigned to that
term in Section 2.02(a).
"Notice of B Borrowing" has the meaning assigned to that
term in Section 2.03(a).
"Notice of Conversion" has the meaning assigned to that
term in Section 2.10.
"OECD" means the Organization for Economic Cooperation
and Development.
"Other Credit Agreement" means the 3-Year Credit
Agreement, dated as of October 20, 1997, among the Borrower,
the lenders from time to time parties thereto and Citibank,
N.A., as agent for such lenders.
"Parent" means IES Industries Inc., an Iowa corporation,
or any successor by merger thereto (including, upon
consummation of the Merger, WPL) that succeeds to the
obligations of IES Industries Inc. under, and in accordance
with Section 2(e) of, the Support Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor entity) established under ERISA.
"Percentage" means, for any Lender on any date of
determination, the percentage obtained by dividing such
Lender's Commitment on such day by the total of the
Commitments on such date, and multiplying the quotient so
obtained by 100%.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint
stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended from time to time.
"Reference Banks" means Citibank, N.A. and The First
National Bank of Chicago, and any additional or substitute
Lenders as may be selected from time to time to act as
Reference Banks hereunder by the Agent, the Majority Lenders
and the Borrower.
"Reference Ratings" means the ratings assigned by S&P and
Moody's to: (i) prior to the consummation of the Merger, the
Reference Securities of IES Utilities and (ii) following the
consummation of the Merger, the lower of the two most highly
rated Reference Securities. For purposes of the foregoing
clause (i) and clause (ii), if the ratings assigned to such
Reference Security by S&P and Moody's, respectively are not
comparable (i.e. a "split rating"), the lower of such two
ratings shall control.
"Reference Securities" means, for each of IES Utilities,
Wisconsin Power and IPC, such Utility's first mortgage bonds
or other most senior secured non-credit enhanced long-term
debt.
"Register" has the meaning assigned to that term in
Section 8.07(c).
"Revolving Period" means the period beginning on October
20, 1997 and ending on the 364th calendar day following such
date, or such later date as the Lenders may from time to time
agree pursuant to Section 2.18(a).
"S&P" means Standard & Poor's Corporation or any
successor thereto.
"Senior Financial Officer" means the President, the Chief
Executive Officer, the Chief Financial Officer or the
Treasurer of the Borrower.
"Significant Subsidiary" means any Subsidiary of the
Borrower that, on a consolidated basis with any of its
Subsidiaries as of any date of determination, accounts for
more than 20% of the consolidated assets (valued at book
value) of the Borrower and its Subsidiaries.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which is subject to
Title IV of ERISA and which (i) is maintained for employees of
the Borrower or an ERISA Affiliate of the Borrower and no
Person other than the Borrower and its ERISA Affiliates, or
(ii) was so maintained and in respect of which the Borrower or
an ERISA Affiliate of the Borrower could have liability under
Section 4069 of ERISA in the event such plan has been or were
to be terminated.
"Subsidiary" means, with respect to any Person, any
corporation or unincorporated entity of which more than 50% of
the outstanding capital stock (or comparable interest) having
ordinary voting power (irrespective of whether at the time
capital stock (or comparable interest) of any other class or
classes of such corporation or entity shall or might have
voting power upon the occurrence of any contingency) is at the
time directly or indirectly owned by said Person (whether
directly or through one of more other Subsidiaries). In the
case of an unincorporated entity, a Person shall be deemed to
have more than 50% of interests having ordinary voting power
only if such Person's vote in respect of such interests
comprises more than 50% of the total voting power of all such
interests in the unincorporated entity.
"Support Agreement" means the 364-Day Support Agreement,
dated as of the date hereof, between the Parent and the
Borrower, substantially in the form of Exhibit 1.01B.
"Term Election" has the meaning assigned to that term in
Section 2.18(a).
"Termination Date" means the earliest to occur of (i) the
last day of the Revolving Period, or, if the Borrower shall
have made the Term Election, the first anniversary of the last
day of the Revolving Period, (ii) September 1, 1998, if the
Merger shall not have been consummated on or prior to May 10,
1998 and (iii) the date of termination or reduction in whole
of the Commitments pursuant to Section 2.05 or 6.01.
"Type" has the meaning assigned to that term (i) in the
definition of "A Advance" when used in such context and
(ii) in the definition of "Borrowing" when used in such
context.
"Unmatured Default" means an event that, with the giving
of notice or lapse of time, or both, would constitute an Event
of Default.
"Utilities" means, collectively, IES Utilities, Wisconsin
Power and IPC.
"Wisconsin Power" means Wisconsin Power & Light Company,
a Wisconsin corporation.
"WPL" means WPL Holdings, Inc., a Wisconsin
Corporation.
SECTION 1.02. Computation of Time Periods. Unless otherwise
indicated, each reference in this Agreement to a specific time of
day is a reference to New York City time. In the computation of
periods of time under this Agreement, any period of a specified
number of days or months shall be computed by including the first
day or month occurring during such period and excluding the last
such day or month. In the case of a period of time "from" a
specified date "to" or "until" a later specified date, the word
"from" means "from and including" and the words "to" and "until"
each means "to but excluding".
SECTION 1.03. Computations of Outstandings. Whenever
reference is made in this Agreement to the "principal amount
outstanding" on any date under this Agreement, such reference shall
refer to the aggregate principal amount of all Advances outstanding
on such date after giving effect to all Extensions of Credit to be
made on such date and the application of the proceeds thereof.
SECTION 1.04. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles ("GAAP") consistent with
those applied in the preparation of the financial statements
referred to in Section 5(d) of the Support Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. (a) Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make
A Advances to the Borrower from time to time on any Business Day
during the period from the Closing until the Termination Date in an
aggregate outstanding amount not to exceed at any time such
Lender's Available Commitment, provided that the aggregate amount
of the Commitments of the Lenders shall be deemed used from time to
time to the extent of the aggregate amount of the B Advances then
outstanding and such deemed use of the aggregate amount of the
Commitments shall be applied to the Lenders ratably according to
their respective Percentages (such deemed use of the aggregate
amount of the Commitments being a "B Reduction"). Each A Borrowing
shall be in an aggregate amount not less than $5,000,000 (or, if
lower, the amount of the Available Commitments) or an integral
multiple of $1,000,000 in excess thereof and shall consist of A
Advances of the same Type made on the same day by the Lenders
ratably according to their respective Percentages. Within the
limits of each Lender's Commitment and as hereinabove and
hereinafter provided, the Borrower may request Extensions of Credit
hereunder, and repay or prepay Advances pursuant to Section 2.11
and utilize the resulting increase in the Available Commitments for
further Extensions of Credit in accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or
receive any Extensions of Credit that would cause the principal
amount outstanding hereunder to exceed the Commitments.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing
shall be made on notice, given not later than 12:00 noon (i) on the
third Business Day prior to the date of the proposed A Borrowing,
in the case of an A Borrowing comprised of Eurodollar Rate
Advances, (ii) on the second Business Day prior to the date of the
proposed A Borrowing, in the case of an A Borrowing comprised of
Adjusted CD Rate Advances, and (iii) on the date of the proposed A
Borrowing, in the case of an A Borrowing comprised of Base Rate
Advances, in each case by the Borrower to the Agent, which shall
give to each Lender prompt notice thereof by telecopier, telex or
cable. Each such notice of an A Borrowing (a "Notice of A
Borrowing") shall be by telecopier, telex or cable, in
substantially the form of Exhibit 2.02(a) hereto, specifying
therein the requested (A) date of such A Borrowing, (B) Type of A
Advances comprising such A Borrowing, (C) aggregate amount of such
A Borrowing and (D) in the case of an A Borrowing comprised of
Adjusted CD Rate Advances or Eurodollar Rate Advances, initial
Interest Period for each such A Advance. Each Lender shall, before
(x) 12:00 noon on the date of such A Borrowing, in the case of an A
Borrowing comprised of Eurodollar Rate Advances or Adjusted CD Rate
Advances, and (y) 1:00 p.m. on the date of such A Borrowing, in the
case of an A Borrowing comprised of Base Rate Advances, make
available for the account of its Applicable Lending Office to the
Agent at its address referred to in Section 8.02, in same day
funds, such Lender's ratable portion of such A Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will
promptly make such funds available to the Borrower at the Agent's
aforesaid address.
(b) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrower. In the case of any A Borrowing which the
related Notice of A Borrowing specifies is to be comprised of
Adjusted CD Rate Advances or Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of A Borrowing for such A
Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the A Advance to be made by
such Lender as part of such A Borrowing when such A Advance, as a
result of such failure, is not made on such date.
(c) Unless the Agent shall have received notice from a Lender
prior to the date of any A Borrowing that such Lender will not make
available to the Agent such Lender's A Advance as part of such A
Borrowing, the Agent may assume that such Lender has made such A
Advance available to the Agent on the date of such A Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent
that such Lender shall not have so made such A Advance available to
the Agent, such Lender and the Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount, together
with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid
to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to A Advances comprising such A Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lender's A Advance as
part of such A Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the A Advance to be
made by it as part of any A Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its A Advance
on the date of such A Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the A Advance to be
made by such other Lender on the date of any A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally
agrees that the Borrower may request B Borrowings under this
Section 2.03 from time to time on any Business Day during the
period from the date hereof until the date occurring 30 days prior
to the Termination Date in the manner, and subject to the terms and
conditions, set forth below. The rates of interest offered by the
Lenders and accepted by the Borrower for each B Borrowing shall be
fixed rates per annum.
(i) The Borrower may request a B Borrowing under this
Section 2.03 by delivering to the Agent, by telecopier, telex
or cable, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit 2.03(a)(i)
hereto, specifying the date and aggregate amount of the
proposed B Borrowing, the maturity date for repayment of each
B Advance to be made as part of such B Borrowing (which
maturity date may not be earlier than the date occurring 30
days after the date of such B Borrowing nor later than the
earliest to occur of the last day of the then-current
Revolving Period, the then-scheduled Termination Date and the
date occurring 180 days following the date of such B
Borrowing), the interest payment date or dates relating
thereto, and any other terms to be applicable to such B
Borrowing, not later than 3:00 p.m. at least one Business Day
prior to the date of the proposed B Borrowing. The Agent
shall in turn promptly notify each Lender of each request for
a B Borrowing received by it from the Borrower by sending such
Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more B
Advances to the Borrower as part of such proposed B Borrowing
at a rate or rates of interest specified by such Lender in its
sole discretion, by notifying the Agent (which shall give
prompt notice thereof to the Borrower), before 11:00 a.m., on
the date of such proposed B Borrowing, of the minimum amount
and maximum amount of each B Advance which such Lender would
be willing to make as part of such proposed B Borrowing (which
amounts may, subject to the limitation contained in subsection
(d), below, exceed such Lender's Commitment), the rate or
rates of interest therefor and such Lender's Applicable
Lending Office with respect to such B Advance; provided that
if the Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the
Borrower of such offer before 10:30 a.m. on the date on which
notice of such election is to be given to the Agent by the
other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Agent before 11:00 a.m.
on the date on which notice of such election is to be given to
the Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any B Advance as part of
such B Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated
to make any B Advance as part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, before 12:00 noon
on the date of such proposed B Borrowing either
(x) cancel such B Borrowing by either giving the
Agent notice to that effect or failing to accept one or
more offers as provided in clause (y), below, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii), above, in
its sole discretion, by giving written notice to the
Agent of the amount of each B Advance (which amount shall
be equal to or greater than the minimum amount, and equal
to or less than the maximum amount, notified to the
Borrower by the Agent on behalf of such Lender for such B
Advance pursuant to paragraph (ii), above) to be made by
each Lender as part of such B Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph
(ii), above, by giving the Agent written notice to that
effect.
(iv) If the Borrower cancels such B Borrowing pursuant to
paragraph (iii)(x), above, the Agent shall give prompt notice
thereof to the Lenders and such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y),
above, such acceptance shall be irrevocable and binding on the
Borrower and, subject to the satisfaction of the applicable
conditions set forth in Article III, on such Lender or
Lenders. The Borrower shall indemnify each such Lender
against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill, on or before the date
specified in the notice provided pursuant to paragraph
(vii)(A), below, the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the
B Advance to be made by such Lender as part of such B
Borrowing when such B Advance, as a result of such failure, is
not made on such date.
(vi) Unless the Agent shall have received notice from a
Lender prior to the date of any B Borrowing in which such
Lender is required to participate that such Lender will not
make available to the Agent such Lender's B Advance as part of
such B Borrowing, the Agent may assume that such Lender has
made such B Advance available to the Agent on the date of such
B Borrowing in accordance with paragraph (vii), below, and the
Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to
the extent that such Lender shall not have so made such B
Advance available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each
day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the Borrower, the interest rate applicable
to such B Advance and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall
constitute such Lender's B Advance as part of such B Borrowing
for purposes of this Agreement.
(vii) If the Borrower accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph
(iii)(y), above, the Agent shall in turn promptly notify
(A) each Lender that has made an offer as described in
paragraph (ii), above, of the date and aggregate amount of
such B Borrowing and whether or not any offer or offers made
by such Lender pursuant to paragraph (ii), above, have been
accepted by the Borrower, (B) each Lender that is to make a B
Advance as part of such B Borrowing of the amount of the B
Advance to be made by such Lender as part of such B Borrowing
and (C) each Lender that is to make a B Advance as part of
such B Borrowing, upon receipt, that the Agent has received
forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to
make a B Advance as part of such B Borrowing shall, before
1:00 p.m. on the date of such B Borrowing specified in the
notice received from the Agent pursuant to clause (A) of the
preceding sentence or any later time when such Lender shall
have received notice from the Agent pursuant to clause (C) of
the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent at its address referred
to in Section 8.02 such Lender's B Advance, in same day funds.
Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Agent of such funds, the
Agent will promptly make such funds available to the Borrower
at the Agent's aforesaid address. Promptly after each B
Borrowing the Agent will notify each Lender of the amount of
the B Borrowing, the consequent B Reduction and the dates upon
which such B Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount not less
than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this
Section 2.03, repay pursuant to subsection (e), below, prepay
pursuant to Section 2.11 and reborrow under this Section 2.03,
provided that a B Borrowing shall not be made within three Business
Days of the date of any other B Borrowing.
(d) In no event shall the Borrower be entitled to request or
receive any B Advances that would cause the principal amount
outstanding hereunder to exceed the Commitments.
(e) The Borrower shall repay to the Agent for the account of
each Lender which has made a B Advance, or each other holder of a B
Note, on the maturity date of each B Advance (such maturity date
being that specified by the Borrower for repayment of such B
Advance in the related Notice of B Borrowing delivered pursuant to
subsection (a)(i), above, and provided in the B Note evidencing
such B Advance), the then unpaid principal amount of such B
Advance.
(f) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance to the
date the principal amount of such B Advance is repaid in full, at
the rate of interest for such B Advance specified by the Lender
making such B Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii), above, payable on the interest
payment date or dates specified by the Borrower for such B Advance
in the related Notice of B Borrowing delivered pursuant to
subsection (a)(i), above, as provided in the B Note evidencing such
B Advance, provided, however, that upon the occurrence and during
the continuance of any Event of Default, each B Advance shall bear
interest at the Default Rate.
(g) The indebtedness of the Borrower resulting from each B
Advance made to the Borrower as part of a B Borrowing shall be
evidenced by a separate B Note of the Borrower payable to the order
of the Lender making such B Advance.
SECTION 2.04. Fees. (a) The Borrower agrees to pay to the
Agent for the account of each Lender the Facility Fee from the date
hereof, in the case of each Bank, and from the effective date
specified in the Lender Assignment pursuant to which it became a
Lender, in the case of each other Lender, until the Termination
Date, payable quarterly in arrears on the last day of each March,
June, September and December during the term of such Lender's
Commitment, commencing December 31, 1997, and on the Termination
Date.
(b) In addition to the fee provided for in subsection (a),
above, the Borrower shall pay to the Agent, for the account of the
Agent, such fees as are provided for in the Fee Letter.
SECTION 2.05. Reduction of the Commitments. (a) The Borrower
shall have the right, upon at least three Business Days' notice to
the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders;
provided that the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount which is less than the
aggregate principal amount of the A and B Advances then
outstanding; and provided, further, that each partial reduction
shall be in a minimum amount of $10,000,000 or any whole multiple
of $1,000,000 in excess thereof. Any termination or reduction of
the Commitments shall be irrevocable, and the Commitments shall not
thereafter be reinstated.
(b) If the Borrower shall make the Term Election: (i) on the
last day of the Revolving Period, the Commitments shall be reduced
to an amount equal to the aggregate principal amount of Advances
then outstanding, and (ii) thereafter, if at any time the Borrower
shall fail to either (A) Convert the full principal amount of any A
Borrowing on the last day of any Interest Period therefor or
reborrow such full principal amount as a B Borrowing on such date,
or (B) reborrow the full amount of any B Borrowing on the maturity
date therefor as either an A Borrowing or a B Borrowing, or any
combination thereof, the resulting Available Commitments of the
Lenders shall automatically be terminated.
(c) On the Termination Date, the Commitments of the Lenders
shall be reduced to zero.
SECTION 2.06. Repayment of A Advances. The Borrower shall
repay the principal amount of each A Advance made by each Lender in
accordance with the A Note to the order of such Lender.
SECTION 2.07. Interest on A Advances. The Borrower shall pay
interest on the unpaid principal amount of each A Advance owing to
each Lender from the date of such A Advance until such principal
amount shall be paid in full, at the Applicable Rate for such A
Advance (except as otherwise provided in this Section 2.07),
payable as follows:
(a) Base Rate Advances. If such A Advance is a Base
Rate Advance, interest thereon shall be payable quarterly in
arrears on the last day of each March, June, September and
December, on the date of any Conversion of such Base Rate
Advance and on the date such Base Rate Advance shall become
due and payable or shall otherwise be paid in full; provided
that at any time an Event of Default shall have occurred and
be continuing, thereafter each Base Rate Advance shall bear
interest payable on demand, at a rate per annum equal at all
times to the Default Rate.
(b) Adjusted CD Rate Advances. If such A Advance is an
Adjusted CD Rate Advance, interest thereon shall be payable on
the last day of such Interest Period and, if the Interest
Period for such A Advance has a duration of more than 90 days,
on each day that occurs during such Interest Period every 90
days from the first day of such Interest Period; provided that
at any time an Event of Default shall have occurred and be
continuing, thereafter each Adjusted CD Rate Advance shall
bear interest payable on demand, at a rate per annum equal at
all times to the Default Rate.
(c) Eurodollar Rate Advances. If such A Advance is a
Eurodollar Rate Advance, interest thereon shall be payable on
the last day of such Interest Period and, if the Interest
Period for such A Advance has a duration of more than three
months, on that day of each third month during such Interest
Period that corresponds to the first day of such Interest
Period (or, if any such month does not have a corresponding
day, then on the last day of such month); provided that at any
time an Event of Default shall have occurred and be
continuing, thereafter each Eurodollar Rate Advance shall bear
interest payable on demand, at a rate per annum equal at all
times to the Default Rate.
SECTION 2.08. Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to Agent for the account of each
Lender any costs actually incurred by such Lender with respect to
Eurodollar Rate Advances which are attributable to such Lender's
compliance with regulations of the Board of Governors of the
Federal Reserve System requiring the maintenance of reserves with
respect to liabilities or assets consisting of or including
Eurocurrency Liabilities. Such costs shall be paid to the Agent
for the account of such Lender in the form of additional interest
on the unpaid principal amount of each Eurodollar Rate Advance of
such Lender, from the date of such A Advance until such principal
amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the Eurodollar
Rate for the Interest Period for such A Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to
100% minus the Eurodollar Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is
payable on such A Advance. Such additional interest shall be
determined by such Lender and notified to the Borrower through the
Agent. A certificate as to the amount of such additional interest,
submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error,
provided that the determination thereof shall have been made by
such Lender in good faith.
SECTION 2.09. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Adjusted CD Rate or Eurodollar
Rate, as applicable. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks.
(b) The Agent shall give prompt notice to the Borrower and
the Lenders of the applicable interest rate determined by the Agent
for purposes of Section 2.07(a), (b) or (c), and the applicable
rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 2.07(b) or
(c).
(c) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Adjusted CD Rate for
any Adjusted CD Rate Advances, or the Eurodollar Rate for any
Eurodollar Rate Advances, due to the unavailability of funds to
such Reference Banks in the relevant financial markets:
(i) the Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for
such Adjusted CD Rate Advances or Eurodollar Rate Advances, as
the case may be;
(ii) each such Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or if such Advance is then a Base
Rate Advance, will continue as a Base Rate Advance); and
(iii) the obligation of the Lenders to make, or to
Convert A Advances into, Adjusted CD Rate Advances or
Eurodollar Rate Advances, as the case may be, shall be
suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no
longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the
cost to such Majority Lenders of making, funding or maintaining
their respective Eurodollar Rate Advances for such Interest Period,
the Agent shall forthwith so notify the Borrower and the Lenders,
whereupon:
(i) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance or, if requested by the
Borrower in accordance with Section 2.10, an Adjusted CD Rate
Advance; and
(ii) the obligation of the Lenders to make, or to Convert
A Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
(e) If the Borrower shall fail to (i) select the duration of
any Interest Period for any Adjusted CD Rate Advances or any
Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01,
(ii) provide a Notice of Conversion with respect to any Eurodollar
Rate Advances or Adjusted CD Rate Advances on or prior to 12:00
noon (A) on the third Business Day prior to the last day of the
Interest Period applicable thereto, in the case of a Conversion to
or in respect of Eurodollar Rate Advances, or (B) on the second
Business Day prior to the last day of the Interest Period
applicable thereto, in the case of a Conversion to or in respect of
Adjusted CD Rate Advances, or (iii) satisfy the applicable
conditions precedent set forth in Section 3.02 with respect to the
Conversion to or in respect of any Eurodollar Rate Advances or
Adjusted CD Rate Advances, the Agent will forthwith so notify the
Borrower and the Lenders and such Advances will automatically, on
the last day of the then existing Interest Period therefor, Convert
into Base Rate Advances; provided, however, that if, in the case of
any failure by the Borrower pursuant to clause (iii), above, the
Majority Lenders do not notify the Borrower within 30 days after
such Conversion into Base Rate Advances that they have agreed to
waive, or have decided not to waive, the applicable conditions
precedent set forth in Section 3.02 that the Borrower failed to
satisfy, the Majority Lenders shall be deemed to have waived such
conditions precedent solely with respect to the Advances so
Converted, and the Borrower shall, at any time after such 30-day
period, be permitted to Convert such Advances into Eurodollar Rate
Advances or Adjusted CD Rate Advances; and provided further,
however, that such deemed waiver shall be of no further force or
effect if, at any time after such 30-day period, the Majority
Lenders notify the Borrower that they no longer agree to waive such
conditions precedent, in which case any such Advances so Converted
into Eurodollar Rate Advances or Adjusted CD Rate Advances shall
automatically Convert into Base Rate Advances on the last day of
the then existing Interest Period therefor.
(f) On the date on which the aggregate unpaid principal
amount of A Advances comprising any A Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than the product of
(i) $1,000,000 and (ii) the number of Lenders on such date, such A
Advances shall, if they are Advances of a Type other than Base Rate
Advances, automatically Convert into Base Rate Advances, and on and
after such date the right of the Borrower to Convert such A
Advances into Advances of a Type other than Base Rate Advances
shall terminate; provided, however, that if and so long as each
such A Advance shall be of the same Type and have the same Interest
Period as A Advances comprising another A Borrowing or other A
Borrowings, and the aggregate unpaid principal amount of all such A
Advances shall equal or exceed the product of (i) $1,000,000 and
(ii) the number of Lenders on such date, the Borrower shall have
the right to continue all such A Advances as, or to Convert all
such A Advances into, Advances of such Type having such Interest
Period.
(g) Upon the occurrence and during the continuance of any
Event of Default, each outstanding Eurodollar Rate Advance and each
outstanding Adjusted CD Rate Advance shall automatically Convert to
a Base Rate Advance at the end of the Interest Period then in
effect for such Eurodollar Rate Advance or Adjusted CD Rate
Advance.
SECTION 2.10. Voluntary Conversion of A Advances. Subject to
the applicable conditions set forth in Section 3.02, the Borrower
may on any Business Day, by delivering a notice of Conversion (a
"Notice of Conversion") to the Agent not later than 12:00 noon
(i) on the third Business Day prior to the date of the proposed
Conversion, in the case of a Conversion to or in respect of
Eurodollar Rate Advances, (ii) on the second Business Day prior to
the date of the proposed Conversion, in the case of a Conversion to
or in respect of Adjusted CD Rate Advances and (iii) on the date of
the proposed Conversion, in the case of a Conversion to or in
respect of Base Rate Advances, and subject to the provisions of
Sections 2.09 and 2.13, Convert all A Advances of one Type
comprising the same A Borrowing into Advances of another Type;
provided, however, that, in the case of any Conversion of any
Adjusted CD Rate Advances or Eurodollar Rate Advances into Advances
of another Type on a day other than the last day of an Interest
Period for such Adjusted CD Rate Advances or Eurodollar Rate
Advances, the Borrower shall be obligated to reimburse the Lenders
in respect thereof pursuant to Section 8.04(b). Each such Notice
of Conversion shall be in substantially the form of Exhibit 2.10
and shall, within the restrictions specified above, specify (A) the
date of such Conversion, (B) the A Advances to be Converted, (C) if
such Conversion is into Adjusted CD Rate Advances or Eurodollar
Rate Advances, the duration of the Interest Period for each such A
Advance, and (D) the aggregate amount of A Advances proposed to be
Converted.
SECTION 2.11. Optional Prepayments of Advances. The Borrower
may, upon at least three Business Day's notice to the Agent stating
the proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Advances comprising part of
the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that each partial prepayment
shall be in an aggregate principal amount not less than $1,000,000
(or, if lower, the principal amount outstanding hereunder on the
date of such prepayment) or an integral multiple of $1,000,000 in
excess thereof. In the case of any such prepayment of an Adjusted
CD Rate Advance, Eurodollar Rate Advance or a B Advance, the
Borrower shall be obligated to reimburse the Lender(s) in respect
thereof pursuant to Section 8.04(b). Except as provided in this
Section 2.11 and in Section 2.12, the Borrower shall have no right
to prepay any principal amount of any Advances.
SECTION 2.12. Mandatory Prepayments. (a) On the date of any
termination or reduction of the Commitments pursuant to Section
2.05, the Borrower shall pay or prepay for the ratable accounts of
the Lenders so much of the principal amount outstanding under this
Agreement as shall be necessary in order that the principal amount
outstanding (after giving effect to such prepayment) will not
exceed the amount of Commitments following such termination or
reduction, together with (A) accrued interest to the date of such
prepayment on the principal amount repaid or prepaid and (B) in the
case of prepayments of Eurodollar Rate Advances, Adjusted CD Rate
Advances or B Advances, any amount payable to the Lenders pursuant
to Section 8.04(b).
(b) All prepayments required to be made pursuant to this
Section 2.12 shall be applied by the Agent as follows:
(i) first, to the prepayment of the A Advances (without
reference to minimum dollar requirements), applied to
outstanding Base Rate Advances up to the full amount thereof
before they are applied to the ratable prepayment of
Eurodollar Rate and Adjusted CD Rate Advances; and
(ii) second, to the prepayment of the B Advances (without
reference to minimum dollar requirements), applied ratably
among all the Lenders holding B Advances.
(c) In lieu of prepaying any Eurodollar Rate Advances,
Adjusted CD Rate Advances or B Advances under any provision (other
than Sections 2.14 and 6.01) of this Agreement, the Borrower may,
upon notice to the Agent, deliver such funds to the Agent, to be
held as additional cash collateral securing the obligations
hereunder and under the Notes. The Agent shall deposit all amounts
delivered to it in a non-interest-bearing special purpose cash
collateral account, to be governed by a cash collateral agreement
in form and substance satisfactory to the Borrower and the Agent,
and shall apply all such amounts in such account against such
Advances on the last day of the Interest Period therefor. The
Agent shall promptly notify the Lenders of any election by the
Borrower to deliver funds to the Agent under this subsection (c).
SECTION 2.13. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of
imposition or increase of reserve requirements, in the case of
Adjusted CD Rate Advances, included in the definition of Adjusted
CD Rate or, in the case of Eurodollar Rate Advances, included in
the Eurodollar Rate Reserve Percentage) in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline
or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any
increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Adjusted CD Rate Advances or Eurodollar Rate
Advances, then the Borrower shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient
to compensate such Lender for such increased cost. A certificate
as to the amount of such increased cost, submitted to the Borrower
and the Agent by such Lender, shall be conclusive and binding for
all purposes, absent manifest error, provided that the
determination thereof shall have been made by such Lender in good
faith.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type,
then, upon demand by such Lender (with a copy of such demand to the
Agent), the Borrower shall immediately pay to the Agent for the
account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or
such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to
be allocable to the existence of such Lender's Commitment. A
certificate as to such amounts submitted to the Borrower and the
Agent by such Lender, describing in reasonable detail the manner in
which such amounts have been calculated, shall be conclusive and
binding for all purposes, absent manifest error, provided that the
determination and allocation thereof shall have been made by such
Lender in good faith.
(c) Notwithstanding the provisions of subsections (a) or (b),
above, to the contrary, no Lender shall be entitled to demand
compensation or be compensated thereunder to the extent that such
compensation relates to any period of time more than 60 days prior
to the date upon which such Lender first notified the Borrower of
the occurrence of the event entitling such Lender to such
compensation (unless, and to the extent, that any such compensation
so demanded shall relate to the retroactive application of any
event so notified to the Borrower).
SECTION 2.14. Illegality. Notwithstanding any other
provision of this Agreement to the contrary, if any Lender (the
"Affected Lender") shall notify the Agent and the Borrower that the
introduction of or any change in or in the interpretation of any
law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for the
Affected Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund
or maintain Eurodollar Rate Advances hereunder, (i) all Eurodollar
Rate Advances of the Affected Lender shall, on the fifth Business
Day following such notice from the Affected Lender, automatically
be Converted into a like number of Base Rate Advances, each in the
amount of the corresponding Eurodollar Rate Advance of the Affected
Lender being so Converted (each such Advance, as so Converted,
being an "Affected Lender Advance"), and the obligation of the
Affected Lender to make, maintain, or Convert A Advances into
Eurodollar Rate Advances shall thereupon be suspended until the
Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist, or the
Affected Lender has been replaced pursuant to Section 8.07(g), and
(ii) in the event that, on the last day of each of the then-current
Interest Periods for each Eurodollar Rate Advance (each such
Advance being an "Unaffected Lender Advance") of each of the other
Lenders (each such Lender being an "Unaffected Lender"), the Agent
shall have yet to notify the Borrower and the Lenders that the
circumstances causing such suspension of the Affected Lender's
obligations as aforesaid no longer exist, or the Affected Lender
has not yet been replaced pursuant to Section 8.07(g), such
Unaffected Lender Advance shall be Converted by the Borrower in
accordance with Section 2.10 into an Advance of another Type (or,
in the event that the Borrower shall fail to duly deliver a Notice
of Conversion with respect thereto, into a Base Rate Advance), and
the obligation of such Unaffected Lender to make, maintain, or
Convert A Advances into Eurodollar Rate Advances shall be suspended
until the Agent shall so notify the Borrower and the Lenders, or
the Affected Lender shall be so replaced. For purposes of any
prepayment under this Agreement, each Affected Lender Advance shall
be deemed to continue to be part of the same Borrowing as the
Unaffected Lender Advance to which it corresponded at the time of
the Conversion of such Affected Lender Advance pursuant to clause
(i), above.
SECTION 2.15. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later
than 1:00 p.m. on the day when due in Dollars to the Agent at its
address referred to in Section 8.02 in same day funds. The Agent
will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or fees ratably
(other than amounts payable pursuant to Section 2.03, 2.08,
2.12(b)(iii), 2.16 or 8.04(b)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of a Lender Assignment and
recording of the information contained therein in the Register
pursuant to Section 8.07(d), from and after the effective date
specified in such Lender Assignment, the Agent shall make all
payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties
to such Lender Assignment shall make all appropriate adjustments in
such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder
or under any Note held by such Lender, to charge from time to time
against any or all of the Borrower's accounts with such Lender any
amount so due.
(c) All computations of interest based on the Alternate Base
Rate and the Federal Funds Rate and of fees shall be made by the
Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Adjusted CD Rate
and the Eurodollar Rate shall be made by the Agent, and all
computations of interest pursuant to Section 2.09 shall be made by
a Lender, on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest or fees
are payable. Each determination by the Agent (or, in the case of
Section 2.09, by a Lender) of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error,
provided that such determination shall have been made by the Agent
or such Lender, as the case may be, in good faith.
(d) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation
of payment of interest or fees, as the case may be; provided,
however, that if such extension would cause payment of interest on
or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in
full, the Agent may assume that the Borrower has made such payment
in full to the Agent on such date and the Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent that the Borrower shall not have so made such
payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.16. Taxes. (a) Any and all payments by the
Borrower hereunder and under the other Loan Documents shall be
made, in accordance with Section 2.15, free and clear of and
without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its overall net income and franchise taxes
imposed on it by the jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income and franchise taxes imposed
on it by the jurisdiction of such Lender's Applicable Lending
Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"); provided,
however, that, notwithstanding the foregoing, Taxes shall not
include any taxes otherwise required to be deducted by the Borrower
pursuant to this subsection (a) as a result of activities of any
Lender or the Agent in the State of Iowa (other than as a result,
or in respect, of this Agreement). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any other Loan Document to any Lender or
the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
2.16) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or under any other Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Lender and the Agent for
the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.16) paid by such Lender or the
Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from
the date such Lender or the Agent (as the case may be) makes
written demand therefor. Nothing herein shall preclude the right
of the Borrower to contest any such Taxes or Other Taxes so paid,
and the Lenders in question or the Agent (as the case may be) will,
following notice from, and at the expense of, the Borrower,
reasonably cooperate with the Borrower to preserve the Borrower's
rights to contest such Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower will furnish to the Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender agrees that, on or prior to the date upon
which it shall become a party hereto, and upon the reasonable
request from time to time of the Borrower or the Agent, such Lender
will deliver to the Borrower and the Agent either (i) a statement
that it is organized under the laws of a jurisdiction within the
United States or (ii) duly completed copies of such form or forms
as may from time to time be prescribed by the United States
Internal Revenue Service indicating that such Lender is entitled to
receive payments without deduction or withholding of any United
States federal income taxes, as permitted by the Internal Revenue
Code of 1986, as amended from time to time. Each Lender that
delivers to the Borrower and the Agent the form or forms referred
to in the preceding sentence further undertakes to deliver to the
Borrower and the Agent further copies of such form or forms, or
successor applicable form or forms, as the case may be, as and when
any previous form filed by it hereunder shall expire or shall
become incomplete or inaccurate in any respect. Each Lender
represents and warrants that each such form supplied by it to the
Agent and the Borrower pursuant to this subsection (e), and not
superseded by another form supplied by it, is or will be, as the
case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable
pursuant to this Section 2.16 shall use its best efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts which may
thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.16 shall survive the payment
in full of principal and interest hereunder and under the Notes.
SECTION 2.17. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the A
Advances made by it (other than pursuant to Section 2.08, 2.13,
2.16 or 8.04(b)) in excess of its ratable share of payments on
account of the A Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations
in the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of
such recovery, together with an amount equal to such Lender's
ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.17 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such
participation.
SECTION 2.18. Extension of Revolving Period; Term Election.
(a) At least 30 but not more than 60 days prior to the end of the
then-current Revolving Period, the Borrower may, by delivering a
written request to the Agent (each such request being irrevocable),
request that the Revolving Period be extended for an additional
period of 364 days, commencing on the last day of the then-current
Revolving Period. Any such notice shall also indicate whether the
Borrower elects, in the event that the Lenders determine not to
extend the Revolving Period as requested by the Borrower, to extend
the then-stated Termination Date from the last day of the
then-current Revolving Period to the first anniversary of the last
day of the then-current Revolving Period (any such election to so
extend the Termination Date being the "Term Election"). Upon
receipt of any such notice, the Agent shall promptly communicate
such request to the Lenders.
(b) No earlier than 30 days prior, and no later than 20 days
prior, to the end of the then-current Revolving Period, the Lenders
shall indicate to the Borrower whether the Borrower's request to so
extend the then-current Revolving Period is acceptable to the
Lenders (and, if so, the conditions, if any, relating to such
acceptance), it being understood that the unanimous written consent
of the Lenders shall be required to effect any such request, that
the determination by each Lender will be in its sole and absolute
discretion and that the failure of any Lender to so respond within
such period shall be deemed to constitute a refusal by such Lender
to consent to such request (with the result being that such request
is denied).
(c) In the event that any request by the Borrower pursuant to
subsection (a), above, shall be denied and the Borrower shall have
indicated in such request that, in the event of such denial, it has
determined to effect the Term Election, then, effective as of the
last day of the then-current Revolving Period, the Termination Date
shall automatically be extended to the first anniversary of such
day. In addition, in the event that the Borrower shall determine
not to request an extension of the then-current Revolving Period
pursuant to subsection (a), above, it may nonetheless make the Term
Election by giving written notice to such effect to the Agent at
least ten Business Days prior to the last day of the then-current
Revolving Period (which shall promptly give notice thereof to the
Lenders), whereupon, effective as of such last day, the Termination
Date shall automatically be extended to the first anniversary of
such last day.
(d) Notwithstanding anything contained herein to the
contrary, the Borrower's right to effect the Term Election as
provided in either subsection (a) or (b), above, shall not affect
any rights or remedies which the Lenders or the Agent may have at
such time under Section 6.01 as a result of any Event of Default or
Unmatured Default which may have occurred and then be continuing,
either at the time of the giving of such notice or on the last day
of the then-current Revolving Period.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Closing. The
Commitments of the Lenders shall not become effective unless the
following conditions precedent shall have been fulfilled on or
prior to October 20, 1997 (or such later Business Day as the
parties hereto may mutually agree):
(a) The Agent shall have received the following, each
dated the date of the Closing, in form and substance
satisfactory to the Lenders and (except for the Notes) in
sufficient copies for each Lender:
(i) this Agreement, duly executed by the Borrower,
each Bank and the Agent;
(ii) the A Notes payable to the order of the
Lenders, respectively, duly completed and executed by the
Borrower;
(iii) certified copies of the resolutions of the
Board of Directors of the Borrower approving this
Agreement, the Notes and the other Loan Documents to
which it is, or is to be, a party, and of all documents
evidencing other necessary corporate action with respect
to this Agreement, the Notes and such Loan Documents;
(iv) certified copies of the resolutions of the
Board of Directors of the Parent approving the Support
Agreement and the other Loan Documents to which it is, or
is to be, a party, together with a certificate of the
Secretary or an Assistant Secretary of the Parent
certifying that attached thereo is a listing of all
credit facilities of the Borrower having the benefit of a
guaranty or other support arrangement from the Parent;
and copies of all documents evidencing other necessary
corporate action with respect to the Support Agreement
and such Loan Documents;
(v) a certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names, true
signatures and incumbency of the officers of the Borrower
authorized to sign this Agreement, the Notes and the
other Loan Documents to which it is, or is to be, a
party;
(vi) a certificate of the Secretary or an Assistant
Secretary of the Parent certifying the names, true
signatures and incumbency of the officers of the Parent
authorized to sign the Support Agreement and the other
Loan Documents to which it is, or is to be, a party;
(vii) copies of the Certificate of Incorporation
(or comparable charter document) and by-laws of the
Borrower, together with all amendments thereto, certified
by the Secretary or an Assistant Secretary of the
Borrower;
(viii) copies of the Certificate of Incorporation
(or comparable charter document) and by-laws of the
Parent, together with all amendments thereto, certified
by the Secretary or an Assistant Secretary of the Parent;
(ix) certified copies of all Governmental Approvals,
if any, required in connection with the execution,
delivery and performance of this Agreement and the other
Loan Documents;
(x) certified copies of the financial statements
referred to in Section 5(d) of the Support Agreement;
(xi) the Support Agreement duly executed by the
Parent and the Borrower, together with (A) a letter from
the Parent to the Agent affirming that the Lenders are
"Lenders" under the Support Agreement and (B) proper
Financing Statements (Form UCC-1 or UCC-3) to be filed
under the Uniform Commercial Code in all jurisdictions as
may be necessary or, in the opinion of the Agent,
desirable to perfect the security interests created by
the Support Agreement;
(xii) favorable opinions of:
(A) Winthrop, Stimson, Putnam & Roberts,
special New York counsel for the Borrower and the
Parent, in substantially the form of Exhibit
3.01(a)(xii)-1 and as to such other matters as the
Majority Lenders, through the Agent, may reasonably
request;
(B) Stephen W. Southwick, Counsel for the
Borrower & Vice President, General Counsel and
Secretary of the Parent, in substantially the form
of Exhibit 3.01(a)(xii)-2 and as to such other
matters as the Majority Lenders, through the Agent,
may reasonably request;
(C) King & Spalding, special New York counsel
to the Agent, in substantially the form of Exhibit
3.01(a)(xii)-3 and as to such other matters as the
Majority Lenders, through the Agent, may reasonably
request; and
(xiii) such other approvals, opinions and
documents as any Lender, through the Agent, may
reasonably request.
(b) The following statements shall be true and correct
and the Agent shall have received a certificate of a duly
authorized officer of the Borrower, dated the date of the
Closing and in sufficient copies for each Lender, stating
that:
(i) the representations and warranties set forth in
Section 4.01 of this Agreement are true and correct on
and as of the date of the Closing as though made on and
as of such date, and
(ii) no event has occurred and is continuing that
constitutes an Unmatured Default or an Event of Default.
(c) The Agent shall have received a certificate (the
statements in which shall be true) of a duly authorized
officer of the Parent, dated the date of the Closing and in
sufficient copies for each Lender, stating that the
representations and warranties set forth in Section 5 of the
Support Agreement are true and correct on and as of the date
of the Closing as though made on and as of such date.
(d) The Borrower shall have paid (i) all fees under or
referenced in Section 2.04 hereof, to the extent then due and
payable, and (ii) all costs and expenses of the Agent
(including counsel fees and disbursements) incurred through
(and for which statements have been provided prior to) the
Closing.
(e) The Borrower shall have executed and delivered the
Other Credit Agreement and the "Loan Documents" referred to
therein, and all conditions precedent set forth in Section
3.01 thereof shall have been satisfied.
(f) The Borrower shall have terminated the commitments
under the Existing Facility, and all amounts accrued and
outstanding thereunder (whether for principal, interest, fees
or other amounts) shall have been paid in full.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of
each A Borrowing (including the initial A Borrowing) shall be
subject to the conditions precedent that, on the date of such A
Borrowing,
(a) the following statements shall be true and correct
(and each of the giving of the applicable Notice of A
Borrowing and the acceptance by the Borrower of the proceeds
therefrom shall constitute a representation and warranty by
the Borrower that, on the date of such A Borrowing, such
statements are true and correct):
(i) the representations and warranties contained in
Section 4.01 and in Section 5 of the Support Agreement
are true and correct on and as of the date of such A
Borrowing, before and after giving effect to the
application of the proceeds therefrom, as though made on
and as of such date; and
(ii) no event has occurred and is continuing, or
would result from such A Borrowing or from the
application of the proceeds therefrom, which constitutes
an Event of Default or an Unmatured Default; and
(b) the Agent shall have received such other approvals,
opinions, or documents as the Agent, or the Majority Lenders
through the Agent, may reasonably request, and such approvals,
opinions, and documents shall be satisfactory in form and
substance to the Agent.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender to make a B Advance on the occasion of a
B Borrowing (including the initial B Borrowing) shall be subject to
the conditions precedent that (a) the Agent shall have received the
written confirmatory Notice of B Borrowing with respect thereto;
(b) on or before the date of such B Borrowing, but prior to such B
Borrowing, the Agent shall have received a B Note payable to the
order of such Lender for each of the one or more B Advances to be
made by such Lender as part of such B Borrowing, in a principal
amount equal to the principal amount of the B Advance to be
evidenced thereby and otherwise on such terms as were agreed to for
such B Advance in accordance with Section 2.03; (c) on the date of
such B Borrowing the following statements shall be true and correct
(and each of the giving of the applicable Notice of B Borrowing and
the acceptance by the Borrower of the proceeds therefrom shall
constitute a representation and warranty by the Borrower that, on
the date of such B Borrowing, such statements are true and
correct):
(i) the representations and warranties contained in
Section 4.01 and in Section 5 of the Support Agreement are
true and correct on and as of the date of such B Borrowing,
before and after giving effect to such B Borrowing and to the
application of the proceeds therefrom, as though made on and
as of such date; and
(ii) no event has occurred and is continuing, or
would result from such B Borrowing or from the application of
the proceeds therefrom, which constitutes an Event of Default
or an Unmatured Default; and
(d) the Agent shall have received such other approvals, opinions,
or documents as the Agent, or the Majority Lenders through the
Agent, may reasonably request, and such approvals, opinions, and
documents shall be satisfactory in form and substance to the Agent.
SECTION 3.04. Reliance on Certificates. The Lenders and the
Agent shall be entitled to rely conclusively upon the certificates
delivered from time to time by officers of the Borrower and the
Parent as to the names, incumbency, authority and signatures of the
respective Persons named therein until such time as the Agent may
receive a replacement certificate, in form acceptable to the Agent,
from an officer of such Person identified to the Agent as having
authority to deliver such certificate, setting forth the names and
true signatures of the officers and other representatives of such
Person thereafter authorized to act on behalf of such Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to do business in, and is in good standing in, all other
jurisdictions where the nature of its business or the nature of
property owned or used by it makes such qualification necessary
(except where the failure to so qualify would not have a material
adverse affect on the business, financial condition, operations,
results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole).
(b) The execution, delivery and performance by the
Borrower of this Agreement, the Notes and the other Loan Documents
to which it is or will be a party are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not and will not contravene (i) the
Borrower's charter or by-laws, (ii) law, or (iii) any legal or
contractual restriction binding on or affecting the Borrower; and
such execution, delivery and performance do not and will not result
in or require the creation of any Lien (other than pursuant to the
Loan Documents) upon or with respect to any of its properties.
(c) No Governmental Approval is required in connection
with the execution, delivery or performance of any Loan Document.
(d) This Agreement is, and each other Loan Document to
which the Borrower will be a party when executed and delivered
hereunder will be, legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms, subject to the qualifications, however, that the
enforcement of the rights and remedies herein and therein is
subject to bankruptcy and other similar laws of general application
affecting rights and remedies of creditors and that the remedy of
specific performance or of injunctive relief is subject to the
discretion of the court before which any proceedings therefor may
be brought.
(e) Since December 31, 1996, there has been no material
adverse change in the business, financial condition, operations,
results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole, or in the Borrower's ability to
perform its obligations under this Agreement or any other Loan
Document to which it is or will be a party.
(f) The unaudited consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as at December 31,
1996, and the related unaudited consolidated and consolidating
statements of income of the Borrower and its Subsidiaries for the
fiscal year then ended, and the unaudited consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries
as at June 30, 1997 and the related unaudited consolidated and
consolidating statements of income for the six-month period then
ended, copies of each of which have been furnished to each Bank,
fairly present (subject, in the case of such balance sheets and
statements of income for the six months ended June 30, 1997, to
year-end adjustments) the consolidated financial condition of the
Borrower and its Subsidiaries as at such dates and the consolidated
results of operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance, in all material
respects, with generally accepted accounting principles
consistently applied.
(g) Except as disclosed in the Parent's Report on Form
10-K for the year ended December 31, 1996 and Report on Form 10-Q
for the period ended June 30, 1997, there is no pending or
threatened action or proceeding affecting the Borrower or any of
its Subsidiaries or properties before any court, governmental
agency or arbitrator, that might reasonably be expected to
materially adversely affect (i) the business, financial condition,
results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole, or (ii) the ability of the Borrower
to perform its obligations under this Agreement or any other Loan
Document to which the Borrower or the Parent is or is to be a
party; and since June 30, 1997 there have been no material adverse
developments in any action or proceeding so disclosed.
(h) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan of the Borrower or any
of its ERISA Affiliates which would result in a material liability
to the Borrower. Since the date of the most recent Schedule B
(Actuarial Information) to the annual report of Plans maintained by
the Borrower (Form 5500 Series), if any, there has been no material
adverse change in the funding status of the Plans referred to
therein and no "prohibited transaction" has occurred with respect
thereto which is reasonably expected to result in a material
liability to the Borrower. Neither the Borrower nor any of its
ERISA Affiliates has incurred nor reasonably expects to incur any
material withdrawal liability under ERISA to any Multiemployer
Plan.
(i) Each of the Support Agreement and the Merger
Agreement is in full force and effect without having been amended,
modified, waived or terminated in any manner, except in each case
in accordance with the terms thereof.
(j) The Borrower has filed all tax returns (Federal,
state and local) required to be filed and paid all taxes shown
thereon to be due, including interest and penalties, or, to the
extent the Borrower is contesting in good faith an assertion of
liability based on such returns, has provided adequate reserves for
payment thereof in accordance with generally accepted accounting
principles.
(k) Following application of the proceeds of each
Advance, not more than 25 percent of the value of the assets of the
Borrower and its Subsidiaries on a consolidated basis will be
margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System).
(l) The Borrower is not an "investment company" or a
company "controlled" by an "investment company", within the meaning
of the Investment Company Act of 1940, as amended.
(m) As of the date hereof, the Borrower is not a
"holding company" within the meaning of PUHCA.
(n) From and after the date upon which, and at all times
during which, any Subsidiary of the Borrower shall be a
"public-utility company" within the meaning of PUHCA, the Borrower
will be a "holding company" within the meaning of PUHCA, but the
Borrower and its Subsidiaries will be exempt from the provisions of
that Act, except Section 9(a)(2) thereof, by virtue of having filed
with the Securities and Exchange Commission a Statement by Holding
Company Claiming Exemption Under Rule U-2 from the Provisions of
the Public Utility Holding Company Act of 1935 on Form U-3A-2.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
amount in respect of any Note shall remain unpaid or any Lender
shall have any Commitment, the Borrower will, unless the Majority
Lenders shall otherwise consent in writing:
(a) Payment of Taxes, Etc. Pay and discharge, and cause
each of its Subsidiaries to pay and discharge, before the same
shall become delinquent, all taxes, assessments and governmental
charges, royalties or levies imposed upon it or upon its property
except, in the case of taxes, to the extent the Borrower or such
Subsidiary is contesting the same in good faith and by appropriate
proceedings and has set aside adequate reserves for the payment
thereof in accordance with generally accepted accounting
principles.
(b) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance covering the Borrower and each of its
Subsidiaries and their respective properties in effect at all times
in such amounts and covering such risks as is usually carried by
companies of a similar size (based on the aggregate book value of
the Parent's assets, as determined on a consolidated basis in
accordance with generally accepted accounting principles
consistently applied), engaged in similar businesses and owning
similar properties in the same general geographical area in which
the Borrower and each such Subsidiary operates, either with
reputable insurance companies or, in whole or in part, by
establishing reserves of one or more insurance funds, either alone
or with other corporations or associations.
(c) Preservation of Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate existence, material rights (statutory and
otherwise) and franchises; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to preserve
and maintain any such right or franchise, and no such Subsidiary
shall be required to preserve and maintain its corporate existence,
unless the failure to do so would have a material adverse effect on
the business, financial condition, operations, results of
operations or prospects of the Borrower and its Subsidiaries, taken
as a whole, or on the Borrower's ability to perform its obligations
under this Agreement or any other Loan Document to which it is or
will be a party.
(d) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, with the requirements of all
applicable laws, rules, regulations and orders of any governmental
authority, including without limitation any such laws, rules,
regulations and orders relating to zoning, environmental
protection, use and disposal of Hazardous Substances, land use,
ERISA, construction and building restrictions, and employee safety
and health matters relating to business operations, the
non-compliance with which would have a material adverse effect on
the business, financial condition, operations, results of
operations or prospects of the Borrower and its Subsidiaries, taken
as a whole, or on the Borrower's ability to perform its obligations
under this Agreement or any other Loan Document to which it is or
will be a party.
(e) Inspection Rights. At any time and from time to
time upon reasonable notice, permit or arrange for the Agent, the
Lenders and their respective agents and representatives to examine
and make copies of and abstracts from the records and books of
account of, and the properties of, the Borrower and each of its
Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and its Subsidiaries with the Borrower and its
Subsidiaries and their respective officers, directors and
accountants.
(f) Keeping of Books. Keep, and cause its Subsidiaries
to keep, proper records and books of account, in which full and
correct entries shall be made of all financial transactions of the
Borrower and its Subsidiaries and the assets and business of the
Borrower and its Subsidiaries, in accordance with generally
accepted accounting principles consistently applied.
(g) Maintenance of Properties, Etc. Maintain, and cause
each of its Subsidiaries to maintain, good and marketable title to,
and preserve, maintain, develop, and operate in substantial
conformity with all laws and material contractual obligations, all
of its properties which are used or useful in the conduct of its
business in good working order and condition, ordinary wear and
tear excepted, except where the failure to do so would not have a
material adverse effect on the business, financial condition,
operations, results of operations or prospects of the Borrower and
its Subsidiaries, taken as a whole, or on the Borrower's ability to
perform its obligations under this Agreement or any other Loan
Document to which it is or will be a party.
(h) Reporting Requirements. Furnish to each Lender:
(i) as soon as possible and in any event within
five Business Days after the occurrence of each Unmatured
Default or Event of Default continuing on the date of such
statement, a statement of a Senior Financial Officer setting
forth details of such Unmatured Default or Event of Default
and the action that the Borrower proposes to take with respect
thereto;
(ii) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such
quarter and consolidated statements of income, retained
earnings and cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, all in
reasonable detail and duly certified (subject to year-end
audit adjustments) by a Senior Financial Officer as having
been prepared in accordance (in all material respects) with
generally accepted accounting principles consistent with those
applied in the preparation of the financial statements
referred to in Section 5(d) of the Support Agreement, together
with a certificate of said officer stating that no Unmatured
Default or Event of Default has occurred and is continuing or,
if an Unmatured Default or Event of Default has occurred and
is continuing, a statement as to the nature thereof and the
action that the Borrower proposes to take with respect
thereto;
(iii) as soon as available and in any event
within 120 days after the end of each fiscal year of the
Borrower, a copy of the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal
year and consolidated statements of income, retained earnings
and cash flows of the Borrower and its Subsidiaries for such
fiscal year, in each case (x) accompanied by the audit report
of Arthur Andersen & Co. or another nationally-recognized
independent public accounting firm acceptable to the Majority
Lenders if at any time during such fiscal year the Reference
Ratings were Baa2 or lower (in the case of Moody's) or BBB or
lower (in the case of S&P) or (y) in reasonable detail and
duly certified by a Senior Financial Officer as having been
prepared in accordance (in all material respects) with
generally accepted accounting principles consistent with those
applied in the preparation of the financial statements
referred to in Section 5(d) of the Support Agreement, together
with a certificate of a Senior Financial Officer stating that
no Unmatured Default or Event of Default has occurred and is
continuing or, if an Unmatured Default or Event of Default has
occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower proposes to take with
respect thereto;
(iv) as soon as possible and in any event (A) within
30 days after any ERISA Event described in clause (i) of the
definition of ERISA Event with respect to any Plan of the
Borrower or any ERISA Affiliate of the Borrower has occurred
and (B) within 10 days after any other ERISA Event with
respect to any Plan of the Borrower or any ERISA Affiliate of
the Borrower has occurred, a statement of a Senior Financial
Officer describing such ERISA Event and the action, if any,
which the Borrower or such ERISA Affiliate proposes to take
with respect thereto;
(v) promptly after receipt thereof by the Borrower
or any of its ERISA Affiliates from the PBGC copies of each
notice received by the Borrower or such ERISA Affiliate of the
PBGC's intention to terminate any Plan of the Borrower or such
ERISA Affiliate or to have a trustee appointed to administer
any such Plan;
(vi) promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan (if any)
to which the Borrower or any ERISA Affiliate of the Borrower
is a contributing employer;
(vii) promptly after receipt thereof by the
Borrower or any ERISA Affiliate of the Borrower from a
Multiemployer Plan sponsor, a copy of each notice received by
the Borrower or such ERISA Affiliate concerning the imposition
or amount of withdrawal liability in an aggregate principal
amount of at least $250,000 pursuant to Section 4202 of ERISA
in respect of which the Borrower or such ERISA Affiliate is
reasonably expected to be liable;
(viii) promptly after the Borrower becomes aware
of the occurrence thereof, notice of all actions, suits,
proceedings or other events of (A) of the type described in
Section 4.01(g) or (B) for which the Agent, the Lenders will
be entitled to indemnity under Section 8.04(c);
(ix) promptly after the sending or filing thereof,
copies of all such proxy statements, financial statements, and
reports which the Borrower sends to its public security
holders (if any), and copies of all regular, periodic and
special reports, and all registration statements and periodic
or special reports, if any, which the Borrower or the Parent
files with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor, or
with any national securities exchange; and
(x) promptly after requested, such other
information respecting the business, properties, results of
operations, prospects, revenues, condition or operations,
financial or otherwise, of the Borrower or any of its
Subsidiaries as the Agent or any Lender through the Agent may
from time to time reasonably request.
(i) Use of Proceeds. Use the proceeds of the Advances
hereunder solely for the Borrower's general corporate purposes, and
not to finance any "hostile" or "unfriendly" acquisition.
(j) Merger Agreement; Support Agreement. Comply in all
material respects with its obligations under the Merger Agreement
and the Support Agreement.
(k) Further Assurances. At the expense of the Borrower,
promptly execute and deliver, or cause to be promptly executed and
delivered, all further instruments and documents, and take and
cause to be taken all further actions, that may be necessary or
that the Majority Lenders through the Agent may reasonably request
to enable the Lenders and the Agent to enforce the terms and
provisions of this Agreement and to exercise their rights and
remedies hereunder or under any other Loan Document. In addition,
the Borrower will use all reasonable efforts to duly obtain
Governmental Approvals required in connection with the Loan
Documents from time to time on or prior to such date as the same
may become legally required, and thereafter to maintain all such
Governmental Approvals in full force and effect.
SECTION 5.02. Negative Covenants. So long as any amount in
respect of any Note shall remain unpaid or any Lender shall have
any Commitment, the Borrower will not, without the written consent
of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume, or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume,
or suffer to exist, any lien, security interest, or other charge or
encumbrance (including the lien or retained security title of a
conditional vendor) of any kind, or any other type of arrangement
intended or having the effect of conferring upon a creditor a
preferential interest upon or with respect to any of its properties
of any character (including, without limitation, accounts) (any of
the foregoing being referred to herein as a "Lien"), excluding,
however, from the operation of the foregoing restrictions the Liens
created under the Loan Documents and the following:
(i) Liens for taxes, assessments or governmental charges
or levies to the extent not past due;
(ii) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's liens and
other similar Liens arising in the ordinary course of business
securing obligations which are not overdue or which are being
contested in good faith, provided that any such contested Lien
securing an amount claimed in excess of $1,000,000 shall be
fully bonded within 90 days after the imposition of such Lien;
(iii) pledges or deposits to secure obligations under
workmen's compensation laws or similar legislation, to secure
public or statutory obligations of the Borrower or such
Subsidiary, or to secure the utility obligations of any such
Subsidiary incurred in the ordinary course of business;
(iv) (A) purchase money Liens upon or in property now
owned or hereafter acquired by the Borrower or any of its
Subsidiaries in the ordinary course of business (consistent
with present practices) to secure (1) the purchase price of
such property or (2) Debt incurred solely for the purpose of
financing the acquisition, construction or improvement of any
such property to be subject to such Liens, or (B) Liens
existing on any such property at the time of acquisition, or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided that no such Lien
shall extend to or cover any property other than the property
being acquired, constructed or improved and replacements,
modifications and proceeds of such property, and no such
extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended,
renewed or replaced;
(v) Liens on the capital stock of any of the Borrower's
single-purpose Subsidiaries or any such Subsidiary's assets to
secure the repayment of project financing or Nonrecourse Debt
for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising
in connection with court proceedings, provided that the
execution or other enforcement of such Liens is effectively
stayed and the claims secured thereby are being actively
contested in good faith by appropriate proceedings or the
payment of which is covered in full (subject to customary
deductible amounts) by insurance maintained with responsible
insurance companies and the applicable insurance company has
acknowledged its liability therefor in writing;
(vii) Liens securing obligations under agreements
entered into pursuant to the Iowa Industrial New Jobs Training
Act or any similar or successor legislation, provided that
such obligations do not exceed $1,000,000 in the aggregate at
any one time outstanding; and
(viii) other Liens set forth in Schedule II hereto,
and any extensions or renewals of any such Liens upon or in
the same property theretofore subject thereto.
(b) Debt. (i) Create, incur, assume, or suffer to
exist any Debt other than:
(A) Debt hereunder and under the other Loan
Documents; and
(B) other Debt of the Borrower; provided, however,
that both immediately before and after the incurrence of
any such other Debt, the Parent shall be in compliance
with the covenant set forth in Section 2(a) of the
Support Agreement.
(ii) Permit any of its Subsidiaries to create, incur,
assume, or suffer to exist any Debt other than:
(A) Debt of any Person acquired by the Borrower or
any such Subsidiary (whether by merger, stock or asset
purchase, or otherwise) that was in effect and
outstanding at the time of acquisition;
(B) Debt owing by any such Subsidiary to the
Borrower or to any other such Subsidiary;
(C) Debt of such Subsidiaries under working capital
lines and with respect to Capitalized Lease Obligations
not to exceed $5,000,000 in the aggregate at any one time
outstanding (such dollar limitation to apply to the Debt
of any Persons acquired by and merged into any such
Subsidiary to the extent of any surviving working capital
lines and Capitalized Lease Obligations of any such
Person which shall survive such acquisition and merger);
(D) Debt secured by Liens permitted by Section
5.02(a)(iv) and (v), including Nonrecourse Debt;
(E) Debt under agreements entered into pursuant to
the Iowa Industrial New Jobs Training Act or any similar
or successor legislation, provided that such Debt does
not exceed $1,000,000 in the aggregate at any one time
outstanding; and
(F) other Debt set forth in Schedule III hereto;
provided, however, that both immediately before and after the
incurrence of any Debt described in clauses (A), (B), (C), (D) and
(E), above, or any Debt listed in Schedule III as proposed to be
incurred following the consummation of the Merger, the Parent
shall be in compliance with the covenant set forth in Section 2(a)
of the Support Agreement.
(c) Compliance with ERISA. (i) Permit to exist any
"accumulated funding deficiency" (as defined in Section 412(a) of
the Internal Revenue Code of 1986, as amended from time to time)
(unless such deficiency exists with respect to a Multiple Employer
Plan or Multiemployer Plan and the Borrower has no control over the
reduction or elimination of such deficiency), (ii) terminate, or
permit any ERISA Affiliate of the Borrower to terminate, any Plan
of the Borrower or such ERISA Affiliate so as to result in any
material (in the opinion of the Majority Lenders) liability of the
Borrower to the PBGC, or (iii) permit to exist any occurrence of
any Reportable Event (as defined in Title IV of ERISA), or any
other event or condition, which presents a material (in the opinion
of the Majority Lenders) risk of such a termination by the PBGC of
any Plan of the Borrower or such ERISA Affiliate and such a
material liability to the Borrower.
(d) Transactions with Affiliates. Enter into, or permit
any of its Subsidiaries to enter into, any transaction with an
Affiliate of the Borrower, unless such transaction is on terms no
less favorable to the Borrower or such Subsidiary, as the case may
be, than if the transaction had been negotiated in good faith on an
arm's length basis with a Person which was not an Affiliate of the
Borrower.
(e) Mergers, Etc. (i) Merge with or into or
consolidate with or into any other Person, except pursuant to and
in accordance with the provisions of the Merger Agreement and then
only if, contemporaneously with the consummation of the Merger, the
surviving corporation: (A) expressly assumes in a writing delivered
to the Agent (with sufficient copies for each Lender) the due and
punctual performance and observance of all of the obligations of
the Borrower under or in respect of the Loan Documents and the
Other Credit Agreement and (B) delivers to the Agent (with
sufficient copies for each Lender) an opinion of counsel, in form
and substance satisfactory to the Agent, as to the enforceability
of the obligations set forth in such writing and the obtaining of
all Governmental Approvals necessary for the performance of such
obligations by such surviving corporation and such other matters as
the Agent may reasonably request. Notwithstanding the foregoing,
the Borrower may also merge with or into or consolidate with or
into any of the Parent's Subsidiaries or the Parent, provided that
immediately after giving effect thereto, (W) no event shall occur
and be continuing which constitutes an Unmatured Default or an
Event of Default, (X) the Borrower is the surviving corporation or,
with respect to any merger or consolidation of the Borrower with or
into the Parent, the surviving (if not the Borrower) or resulting
corporation shall have expressly assumed the obligations of the
Borrower under this Agreement, the Notes and the other Loan
Documents to which the Borrower is a party, (Y) the Parent (unless
it shall be the surviving corporation) shall reaffirm its
obligations to the surviving or resulting corporation under the
Support Agreement and (Z) the Borrower shall not be liable with
respect to any Debt or allow its property to be subject to any Lien
which it could not become liable with respect to or allow its
property to become subject to under this Agreement or any other
Loan Document on the date of such transaction; and
(ii) permit any of its Subsidiaries to merge with or into or
consolidate with or into any other Person, except that any such
Subsidiary may merge with or into any other Person, provided that
immediately after giving effect thereto, (A) the surviving
corporation is a Subsidiary of the Borrower, (B) no event shall
occur and be continuing which constitutes an Unmatured Default or
an Event of Default and (C) the Borrower or any of its Subsidiaries
shall not be liable with respect to any Debt or allow its property
to be subject to any Lien which it could not become liable with
respect to or allow its property to become subject to under this
Agreement or any other Loan Document on the date of such
transaction.
(f) Sales, Etc., of Assets. Sell, lease, transfer,
assign or otherwise dispose of all or any substantial part of its
assets, or permit any of its Subsidiaries to sell, lease, transfer,
assign or otherwise dispose of all or any substantial part of its
assets, except (i) sales, leases, transfers and assignments from
one Subsidiary of the Borrower to another such Subsidiary, (ii)
prior to the consummation of the Merger, sales, leases, transfers
and assignments of assets having a book value not in excess of
$10,000,000 in the aggregate and sales, leases, transfers and
assignments of worn out or obsolete equipment no longer used and
useful in the business of the Borrower and its Subsidiaries, (iii)
following the consummation of the Merger, in any transaction in
which the proceeds from such sale, lease, transfer, assignment or
disposition are solely in Cash and Cash Equivalents and such
proceeds are (A) reinvested, or held for no more than 180 days in
Cash and Cash Equivalents pending reinvestment, in lines of
business (other than real estate) in which the Borrower or any of
its Subsidiaries is engaged in at the time of the Closing, (B)
applied as a reduction of the Commitments and prepayment of
Advances pursuant to Sections 2.05, 2.11 and 2.12, or (C) applied
to pay or prepay Debt incurred by the Borrower or any such
Subsidiary in connection with the project comprising such assets,
or (iv) in connection with a sale and leaseback transaction entered
into by any Subsidiary of the Borrower and (v) following the
consummation of the Merger, sales, leases, transfers and
assignments of other assets having a book value not in excess of
$20,000,000 in the aggregate during any 12-calendar-month period in
any single or series of transactions, whether or not related
and sales, leases, transfers and assignments of worn out or
obsolete equipment no longer used and useful in the business of the
Borrower and its Subsidiaries; provided in each case that no
Unmatured Default or Event of Default shall have occurred and be
continuing after giving effect thereto; and provided further
however, that prior to the consummation of the Merger, the Borrower
shall in no event sell, lease, transfer, or assign any of the
McLeodUSA Stock or grant any interest therein to any other person.
(g) Modification of Support Agreement. Agree to amend,
modify, terminate, or waive any provision of the Support Agreement.
(h) Letter of Credit Obligations. Incur, or permit any
of its Subsidiaries to incur, any indebtedness, liabilities or
obligations (whether contingent or otherwise) under reimbursement
or similar agreements with respect to letters of credit issued to
support obligations that do not constitute Debt, except (i)
indebtedness, liabilities or obligations not in excess of
$1,000,000 in the aggregate at any one time outstanding, and (ii)
in respect of bid bonds but only if the Borrower's or such
Subsidiary's obligations in respect of all such bid bonds do not at
any time exceed the sum of (A) the Available Commitments at such
time plus (B) the "Available Commitments" under (and as defined in)
the Other Credit Agreement at such time plus (C) the aggregate face
amount of the Borrower's commercial paper notes outstanding at such
time.
(i) Maintenance of Ownership of Significant
Subsidiaries. Sell, assign, transfer, pledge or otherwise dispose
of any shares of capital stock of any of its Significant
Subsidiaries or any warrants, rights or options to acquire such
capital stock, or permit any of its Significant Subsidiaries to
issue, sell or otherwise dispose of any shares of its capital stock
or the capital stock of any other of its Subsidiaries or any
warrants, rights or options to acquire such capital stock, except
(and only to the extent) as may be necessary to give effect to a
transaction permitted by subsection (e), above.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events (each an "Event of Default") shall occur and be continuing
after the applicable grace period and notice requirement (if any):
(a) The Borrower shall fail to pay any principal of any
Note when the same becomes due and payable; or
(b) The Borrower shall fail to pay any interest on any
Note or any other amount due under this Agreement for two days
after the same becomes due; or
(c) Any representation or warranty made by or on behalf
of the Borrower in any Loan Document or in any certificate or other
writing delivered pursuant thereto shall prove to have been
incorrect in any material respect when made or deemed made; or
(d) Any representation or warranty made by or on behalf
of the Parent in the Support Agreement or in any certificate or
other writing delivered pursuant thereto shall prove to have been
incorrect in any material respect when made or deemed made; or
(e) The Borrower shall fail to perform or observe any
term or covenant on its part to be performed or observed contained
in Section 5.02 (other than subsections (c), (d), (g), (i) or (j)
thereof), or the Parent shall fail to perform or observe any term
or covenant on its part to be performed or observed contained in
Section 1, 2 or 4 of the Support Agreement; or
(f) The Borrower shall fail to perform or observe any
other term or covenant on its part to be performed or observed
contained in Section 5.01, Section 5.02 or in any other Loan
Document, or the Parent shall fail to perform or observe any other
term or covenant on its part to be performed or observed contained
in the Support Agreement, and any such failure shall remain
unremedied, after written notice thereof shall have been given to
the Borrower by the Agent, for a period of 30 days; or
(g) The Parent or any of its Subsidiaries (including the
Borrower but excluding the Utilities) shall fail to pay any of its
Debt (including any interest or premium thereon but excluding Debt
evidenced by the Notes) aggregating $5,000,000 or more when due
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) and such failure shall continue after the
applicable grace period, if any, specified in any agreement or
instrument relating to such Debt; or any other default under any
agreement or instrument relating to any such Debt, or any other
event, shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt shall
be declared to be due and payable, or required to be prepaid (other
than by a regularly scheduled required prepayment) prior to the
stated maturity thereof as a result of a default or other similar
adverse event; or
(h) Any of the Utilities shall fail to pay any of its
Debt (including any interest or premium thereon) aggregating
$5,000,000 or more when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such
failure shall continue after the applicable grace period, if any,
specified in any agreement or instrument relating to such Debt; or
any such Debt shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof as a result of a
default or other similar adverse event; or
(i) The Borrower, the Parent or any of the Utilities
shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or
shall make an assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower, the
Parent or any of the Utilities seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of its
debts under any law relating to bankruptcy, insolvency, or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of its
property and, in the case of a proceeding instituted against the
Borrower, the Parent or any of the Utilities, either such
proceeding shall remain undismissed or unstayed for a period of 60
days or any of the actions sought in such proceeding (including
without limitation the entry of an order for relief against the
Borrower, the Parent or such Utility or the appointment of a
receiver, trustee, custodian or other similar official for the
Borrower, the Parent or such Utility or any of its property) shall
occur; or the Borrower, the Parent or any of the Utilities shall
take any corporate or other action to authorize any of the actions
set forth above in this subsection (i); or
(j) Any judgment or order for the payment of money equal
to or in excess of $5,000,000 shall be rendered against the Parent
or any of its Direct Subsidiaries (including, without limitation,
the Borrower and the Utilities) or their respective properties and
either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any
period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(k) The Support Agreement, after delivery thereof under
Article III, shall for any reason, except to the extent permitted
by the terms thereof, cease to be valid and binding on the Parent
or the Borrower; or
(l) Any Governmental Approval required in connection
with the execution, delivery and performance of the Loan Documents
shall be rescinded, revoked, otherwise terminated, or amended or
modified in any manner which is materially adverse to the interests
of the Lenders and the Agent; or
(m) Any ERISA Event shall have occurred with respect to
a Plan which could reasonably be expected to result in a material
liability to the Borrower, and, 30 days after notice thereof shall
have been given to the Borrower by the Agent or any Lender, such
ERISA Event shall still exist; or
(n) An "event of default" (as defined therein) shall
occur and be continuing under the Other Credit Agreement; or
(o) Except as contemplated by the Merger Agreement: (A)
any Person or "group" (within the meaning of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended) shall either
(1) acquire beneficial ownership of more than 50% of any
outstanding class of common stock of the Parent having ordinary
voting power in the election of directors of the Parent or (2)
obtain the power (whether or not exercised) to elect a majority of
the Parent's directors or (B) the Board of Directors of the Parent
shall not consist of a majority of Continuing Directors.
"Continuing Directors" shall mean the directors of the Parent on
the effective date of the Facility and each other director of the
Parent, if such other director's nomination for election to the
Board of Directors of the Parent is recommended by a majority of
the then Continuing Directors.
then, and in any such event, the Agent (i) shall at the request,
or may with the consent, of the holders of at least 66-2/3% in
principal amount of the A Advances then outstanding or, if no A
Advances are then outstanding, Banks having at least 66-2/3% of the
Commitments (without giving effect to any B Reduction), by notice
to the Borrower, declare the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent,
of the holders of at least 66-2/3% in principal amount of the
Advances then outstanding or, if no Advances are then outstanding,
Lenders having at least 66-2/3% of the Commitments, by notice to
the Borrower, declare the Notes (if any), all interest thereon and
all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the Commitments and the obligation of each
Lender to make Advances shall automatically be terminated and (B)
the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are
delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement or any other Loan Document
(including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion
or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and
such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required
to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement. The
Agent shall be deemed to have exercised reasonable care in the
administration and enforcement of this Agreement and the other Loan
Documents if it undertakes such administration and enforcement in a
manner substantially equal to that which Citibank, N.A. accords
credit facilities similar to the credit facility hereunder for
which it is the sole lender.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under or
in connection with this Agreement or any other Loan Document,
except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent:
(i) may treat the payee of any Note as the holder thereof until the
Agent receives and accepts a Lender Assignment entered into by the
Lender which is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (ii)
may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no
warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection
with this Agreement or any other Loan Document; (iv) shall not have
any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this
Agreement or any other Loan Document on the part of the Borrower or
the Parent or to inspect the property (including the books and
records) of the Borrower or the Parent; (v) shall not be
responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (vi) shall incur
no liability under or in respect of this Agreement or any other
Loan Document by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram,
cable or telex) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 7.03. Citibank, N.A. and Affiliates. With respect to
its Commitment, the Advances made by it and the Notes issued to it,
Citibank, N.A. shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though
it were not the Agent; and the term "Bank" or "Banks" and "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include
Citibank, N.A. in its individual capacity. Citibank, N.A. and its
Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business
with, the Borrower, the Parent any of its Subsidiaries and any
Person who may do business with or own securities of the Borrower,
the Parent or any such Subsidiary, all as if Citibank, N.A. were
not the Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
the Agent or any other Lender and based on the financial statements
referred to in Section 5(d) of the Support Agreement and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the Borrower),
ratably according to (a) on or before the Termination Date, the
respective principal amounts of the A Notes then held by each of
them (or if no A Notes are at the time outstanding or if any A
Notes are held by Persons which are not Lenders, ratably according
to the respective Percentages of the Lenders), or (b) after the
Termination Date, the respective principal amounts of the Notes
then held by each of them (or if no Notes are at the time
outstanding or if any Notes are held by Persons which are not
Lenders, ratably according to the respective unpaid principal
amounts of the Advances made by each Lender), from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of
this Agreement or any action taken or omitted by the Agent under
this Agreement, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by
the Majority Lenders, with any such resignation or removal to
become effective only upon the appointment of a successor Agent
pursuant to this Section 7.06. Upon any such resignation or
removal, the Majority Lenders shall have the right to appoint a
successor Agent, which shall be a Lender or shall be another
commercial bank or trust company reasonably acceptable to the
Borrower organized under the laws of the United States or of any
State thereof. If no successor Agent shall have been so appointed
by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a Lender or shall be another
commercial bank or trust company organized under the laws of the
United States of any State thereof reasonably acceptable to the
Borrower. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VII shall inure
to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Majority Lenders and, in the
case of any amendment, the Borrower, and then such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by
all the Lenders, do any of the following: (a) waive, modify or
eliminate any of the conditions specified in Section 3.01 or 3.02,
(b) increase the Commitments of the Lenders or subject the Lenders
to any additional obligations, (c) reduce the principal of, or
interest on, the A Notes, any Applicable Margin or any fees or
other amounts payable hereunder, (d) postpone any date fixed for
any payment of principal of, or interest on, the A Notes or any
fees or other amounts payable hereunder, (e) change the percentage
of the Commitments or of the aggregate unpaid principal amount of
the A Notes, or the number of Lenders, which shall be required for
the Lenders or any of them to take any action hereunder or
(f) amend this Section 8.01; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by
the Lenders making or maintaining such B Advances, do any of the
following: (a) waive, modify or eliminate any of the conditions to
any B Advance specified in Section 3.03, (b) reduce the principal
of, or interest on, any B Note or other amounts payable in respect
thereof, (c) postpone any date fixed for any payment of principal
of, or interest on, any B Note or any other amounts payable in
respect thereof; and provided, further, that no amendment, waiver
or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect
the rights or duties of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder and under the other Loan
Documents shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to the Borrower, at its address at
200 First Street, Cedar Rapids, Iowa 52401, Attention: Treasurer;
if to the Parent, at its address at 200 First Street, Cedar Rapids,
Iowa 52401, Attention: Treasurer; if to any Bank, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in
the Lender Assignment pursuant to which it became a Lender; and if
to the Agent, at its address at Two Pennsway, Ste. 200, New Castle,
Delaware 19720, Attention: Bank Loan Syndications; or, as to each
party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied, telegraphed, telexed
or cabled, be effective five days after being deposited in the
mails, or when delivered to the telegraph company, telecopied,
confirmed by telex answerback or delivered to the cable company,
respectively, except that notices and communications to the Agent
pursuant to Article II or VII shall not be effective until received
by the Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses, Taxes and Indemnification.
(a) The Borrower agrees to pay on demand all costs and expenses of
the Agent in connection with the preparation (including, without
limitation, printing costs), negotiation, execution, delivery,
modification and amendment of this Agreement and the other Loan
Documents, and the other documents and instruments to be delivered
hereunder and thereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Agent
with respect thereto and with respect to the administration of, and
advising the Agent as to its rights and responsibilities under,
this Agreement and the other Loan Documents. The Borrower further
agrees to pay on demand all costs and expenses, if any (including,
without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement and the other
Loan Documents and the other documents and instruments to be
delivered hereunder and thereunder, including, without limitation,
reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 8.04(a). In addition, the
Borrower shall pay any and all stamp and other taxes payable or
determined to be payable in connection with the execution and
delivery of this Agreement and the other Loan Documents, and the
other documents and instruments to be delivered hereunder and
thereunder, and agrees to save the Agent and each Lender harmless
from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes.
(b) If any payment of principal of, or Conversion of,
any Adjusted CD Rate Advance, Eurodollar Rate Advance or B Advance
is made other than on the last day of the Interest Period for such
A Advance or other than on the maturity date of such B Advance, as
a result of a payment or Conversion pursuant to Section 2.09(f),
2.10, 2.11, 2.12 or 2.14 or acceleration of the maturity of the
Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by any Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably incur
as a result of such payment or Conversion, including, without
limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold
each Lender, the Agent and their respective officers, directors,
employees, professional advisors and affiliates (each, an
"Indemnified Person") harmless from and against any and all claims,
damages, losses, liabilities, costs or expenses (including
reasonable attorney's fees and expenses, whether or not such
Indemnified Person is named as a party to any proceeding or is
otherwise subjected to judicial or legal process arising from any
such proceeding) which any of them may incur or which may be
claimed against any of them by any Person (except for such claims,
damages, losses, liabilities, costs and expenses resulting from
such Indemnified Person's gross negligence or willful misconduct):
(i) by reason of or in connection with the execution,
delivery or performance of any of the Loan Documents or any
transaction contemplated thereby, or the use by the Borrower
of the proceeds of any Extension of Credit;
(ii) in connection with any documentary taxes,
assessments or charges made by any governmental authority by
reason of the execution and delivery of any of the Loan
Documents;
(iii) in connection with or resulting from the
utilization, storage, disposal, treatment, generation,
transportation, release or ownership of any Hazardous
Substance (i) at, upon, or under any property of the Borrower
or any of its Affiliates or (ii) by or on behalf of the
Borrower or any of its Affiliates at any time and in any
place; or
(iv) by reason of or in connection with the Merger or any
of the transactions contemplated by the Merger Agreement.
(d) The Borrower's obligations under this Section 8.04
shall survive the repayment of all amounts owing to the Lenders
under the Notes and the termination of the Commitments. If and to
the extent that the obligations of the Borrower under this Section
8.04 are unenforceable for any reason, the Borrower agrees to make
the maximum contribution to the payment and satisfaction thereof
which is permissible under applicable law.
SECTION 8.05. Right of Set-off. (a) Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent by the
Majority Lenders specified by Section 6.01 to authorize the Agent
to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account
of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under any Loan Document and any
Note held by such Lender, irrespective of whether or not such
Lender shall have made any demand under such Loan Document or such
Note and although such obligations may be unmatured. Each Lender
agrees promptly to notify the Borrower after any such set-off and
application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section are in
addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
(b) The Borrower agrees that it shall have no right of
set-off, deduction or counterclaim in respect of its obligations
hereunder, and that the obligations of the Lenders hereunder are
several and not joint. Nothing contained herein shall constitute a
relinquishment or waiver of the Borrower's rights to any
independent claim that the Borrower may have against the Agent or
any Lender for the Agent's or such Lender's, as the case may be,
gross negligence or wilful misconduct, but no Lender shall be
liable for the conduct of the Agent or any other Lender, and the
Agent shall not be liable for the conduct of any Lender.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Agent and when the Agent shall have been notified in writing by
each Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent
and each Lender and their respective successors and assigns, except
that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent
of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each
Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning
Lender's rights and obligations under this Agreement, (ii) the
amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the
Lender Assignment with respect to such assignment) shall in no
event be less than the lesser of the amount of such Lender's then
remaining Commitment and $5,000,000 (except in the case of
assignments between Lenders at the time already parties hereto),
and (iii) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the
Register, a Lender Assignment, together with any Note or Notes
subject to such assignment and a processing and recordation fee of
$3,000. Promptly following its receipt of such Lender Assignment,
Note or Notes and fee, the Agent shall accept and record such
Lender Assignment in the Register. Upon such execution, delivery,
acceptance and recording, from and after the effective date
specified in each Lender Assignment, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Lender Assignment, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by
it pursuant to such Lender Assignment, relinquish its rights and be
released from its obligations under this Agreement (and, in the
case of a Lender Assignment covering all or the remaining portion
of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
Notwithstanding anything to the contrary contained in this
Agreement, any Lender may at any time assign all or any portion of
the Advances owing to it to any Affiliate of such Lender. No such
assignment, other than to an Eligible Assignee, shall release the
assigning Lender from its obligations hereunder.
(b) By executing and delivering a Lender Assignment, the
Lender assignor thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Lender Assignment, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with any Loan Document or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant thereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the
Parent or the performance or observance by the Borrower or the
Parent of any of its obligations under any Loan Document or any
other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred
to in Section 5(d) of the Support Agreement and such other
documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Lender
Assignment; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to
in Section 8.02 a copy of each Lender Assignment delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower,
the Parent, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by
an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Note or Notes subject to such
assignment, the Agent shall, if such Lender Assignment has been
completed and is in substantially the form of Exhibit 8.07 hereto,
(i) accept such Lender Assignment, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within 10 Business Days after its receipt
of such notice, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the surrendered Note or Notes
a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it pursuant to such Lender
Assignment and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new
Note or Notes shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Lender Assignment and
shall otherwise be in substantially the form of Exhibit 1.01A-1
hereto.
(e) Each Lender may sell participations to one or more
banks, financial institutions or other entities in all or a portion
of its rights and obligations under the Loan Documents (including,
without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes held by it); provided,
however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, and (iv) the
Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower or the Parent furnished to such Lender by or on behalf of
the Borrower or the Parent; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or
participant shall agree, in accordance with the terms of Section
8.08, to preserve the confidentiality of any Confidential
Information relating to the Borrower or the Parent received by it
from such Lender.
(g) If any Lender (or any bank, financial institution,
or other entity to which such Lender has sold a participation)
shall (i) make any demand for payment under Section 2.08 or 2.13,
(ii) give notice to the Agent pursuant to Section 2.14 or
(iii) determine not to extend the Termination Date in response to
any request by the Borrower pursuant to Section 2.18, then (A) in
the case of any demand made under clause (i), above, or the
occurrence of the event described in clause (ii), above, within 30
days after any such demand or occurrence (if, but only if, in the
case of any demanded payment described in clause (i), such demanded
payment has been made by the Borrower), and (B) in the case of the
occurrence of the event described in clause (iii), above, at any
time prior to the then-scheduled Termination Date, the Borrower
may, with the approval of the Agent (which approval shall not be
unreasonably withheld), and provided that no Event of Default or
Unmatured Default shall then have occurred and be continuing,
demand that such Lender assign in accordance with this Section 8.07
to one or more Eligible Assignees designated by the Borrower all
(but not less than all) of such Lender's Commitment and the
Advances owing to it within the period ending on the latest to
occur of (x) the last day in the period described in clause (A) or
(B), above, as applicable, (y) the last day of the longest of the
then current Interest Periods for such Advances, and (z) the latest
maturity date of any B Advances owing to such Lender. If any such
Eligible Assignee designated by the Borrower shall fail to
consummate such assignment on terms acceptable to such Lender, or
if the Borrower shall fail to designate any such Eligible Assignees
for all or part of such Lender's Commitment or Advances, then such
demand by the Borrower shall become ineffective; it being
understood for purposes of this subsection (g) that such assignment
shall be conclusively deemed to be on terms acceptable to such
Lender, and such Lender shall be compelled to consummate such
assignment to an Eligible Assignee designated by the Borrower, if
such Eligible Assignee (1) shall agree to such assignment by
entering into a Lender Assignment with such Lender and (2) shall
offer compensation to such Lender in an amount equal to all amounts
then owing by the Borrower to such Lender hereunder and under the
Note made by the Borrower to such Lender, whether for principal,
interest, fees, costs or expenses (other than the demanded payment
referred to above and payable by the Borrower as a condition to the
Borrower's right to demand such assignment), or otherwise.
(h) Anything in this Section 8.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to any
Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
SECTION 8.08. Confidentiality. In connection with the
negotiation and administration of this Agreement and the other Loan
Documents, the Borrower and the Parent have furnished and will from
time to time furnish to the Agent and the Lenders (each, a
"Recipient") written information which is identified to the
Recipient in writing when delivered as confidential (such
information, other than any such information which (i) as publicly
available, or otherwise known to the Recipient, at the time of
disclosure, (ii) subsequently becomes publicly available other than
through any act or omission by the Recipient or (iii) otherwise
subsequently becomes known to the Recipient other than through a
Person whom the Recipient knows to be acting in violation of his or
its obligations to the Borrower or the Parent, being hereinafter
referred to as "Confidential Information"). The Recipient will
maintain the confidentiality of any Confidential Information in
accordance with such procedures as the Recipient applies generally
to information of that nature. It is understood, however, that the
foregoing will not restrict the Recipient's ability to freely
exchange such Confidential Information with current or prospective
participants in or assignees of the Recipient's position herein,
but the Recipient's ability to so exchange Confidential Information
shall be conditioned upon any such prospective participant's or
assignee's entering into an understanding as to confidentiality
similar to this provision. It is further understood that the
foregoing will not prohibit the disclosure of any or all
Confidential Information if and to the extent that such disclosure
may be required (i) by a regulatory agency or otherwise in
connection with an examination of the Recipient's records by
appropriate authorities, (ii) pursuant to court order, subpoena or
other legal process or in connection with any pending or threatened
litigation, (iii) otherwise as required by law, or (iv) in order to
protect its interests or its rights or remedies hereunder or under
the other Loan Documents; in the event of any required disclosure
under clause (ii) or (iii), above, the Recipient agrees to use
reasonable efforts to inform the Borrower and the Parent as
promptly as practicable.
SECTION 8.09. WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS,
THE BORROWER AND THE PARENT HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF THE AGENT, SUCH LENDERS, THE
BORROWER OR THE PARENT. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT.
SECTION 8.10. Consent. Unless otherwise specified as being
within the sole discretion of the Agent, the Lenders the Majority
Lenders or the Borrower, whenever the consent or approval of the
Agent, the Lenders, the Majority Lenders or the Borrower,
respectively, is required herein, such consent or approval shall
not be unreasonably withheld or delayed.
SECTION 8.11. Governing Law. This Agreement and the other
Loan Documents shall be governed by, and construed in accordance
with, the laws of the State of New York. The Borrower, the Parent,
each Lender, and the Agent (i) irrevocably submits to the
non-exclusive jurisdiction of any New York State court or Federal
court sitting in New York City in any action arising out of any
Loan Document, (ii) agrees that all claims in such action may be
decided in such court, (iii) waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum and (iv)
consents to the service of process by mail. A final judgment in
any such action shall be conclusive and may be enforced in other
jurisdictions. Nothing herein shall affect the right of any party
to serve legal process in any manner permitted by law or affect its
right to bring any action in any other court.
SECTION 8.12. Relation of the Parties; No Beneficiary. No
term, provision or requirement, whether express or implied, of any
Loan Document, or actions taken or to be taken by any party
thereunder, shall be construed to create a partnership,
association, or joint venture between such parties or any of them.
No term or provision of the Loan Documents shall be construed to
confer a benefit upon, or grant a right or privilege to, any Person
other than the parties thereto.
SECTION 8.13. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
IES DIVERSIFIED INC.
By /s/ Dennis B. Vass
Title: Treasurer
CITIBANK, N.A.,
as Agent
By /s/ Anita J. Brickell
Title: Attorney-In-Fact
Bank
CITIBANK, N.A.
By /s/ Anita J. Brickell
Title: Attorney-In-Fact
Bank
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Madeleine N. Pember
Title: Corporate Banking Officer
SCHEDULE I
IES DIVERSIFIED INC.
364-Day Credit Agreement, dated as of October 20, 1997, among
IES Diversified Inc., the Banks named therein and Citibank, N.A.,
as Agent
Name of Bank Commitment Domestic CD Lending Eurodollar
Lending Office Office Lending
Office
Citibank, N.A. $75,000,000 Two Pennsway, Ste. 200, Same as Same as
New Castle, Domestic Domestic
Delaware 19720 Lending Lending
Attention: Bank Loan Office Office
Syndications
The First $75,000,000 One First National Same as Same as
National Bank Plaza, Suite 0363 Domestic Domestic
of Chicago Chicago, Illinois Lending Lending
60670-0363 Office Office
Telephone: 312.732.9780
Telecopy: 312.732.3055 /
312.732.6485
Attention:
Robert G. Bussa
SCHEDULE II
SCHEDULE III
EXHIBIT 10(c)
IES INDUSTRIES INC. GRANTOR TRUST
FOR DIRECTOR RETIREMENT PLAN
THIS AGREEMENT, made this 15th day of August, 1997, by and between
IES INDUSTRIES INC. ("the Company") and NORWEST BANK IOWA, N.A. (the
"Trustee");
W I T N E S S E T H:
WHEREAS, the Company has adopted the Director Retirement Plan (the
"Plan");
WHEREAS, the Company has incurred or expects to incur liability
under the terms of such Plan with respect to the individuals
participating in such Plan;
WHEREAS, the Company wishes to establish a trust (the "Trust") and
to contribute to the Trust assets that shall be held therein, subject to
the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Plan as an unfunded plan maintained for the purpose of providing
deferred compensation for directors of the Company; and
WHEREAS, it is the intention of the Company to make contributions
to the Trust to provide itself with a source of funds to assist it in
the meeting of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
1.1 The Company hereby deposits with the Trustee, in trust, the
sum of $1,000, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust
Agreement.
1.2 The Trust hereby established shall be irrevocable.
1.3 The Trust is intended to be a grantor trust, of which the
Company is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
1.4 The principal of the Trust, and any earnings thereon, shall be
held separate and apart from other funds of the Company and shall be
used exclusively for the uses and purposes of Plan participants and
general creditors as herein set forth. Plan participants and their
beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against
the Company. Any assets held by the Trust will be subject to the claims
of the Company's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3.1 herein.
1.5 Within ten business days following a Change in Control, the
Company shall make an irrevocable contribution to the Trust in an amount
that is not less than the sum of the payments, determined on an
undiscounted basis, which are then due or which may thereafter become
due to participants or beneficiaries pursuant to the terms of the Plan.
1.6 As of each December 31 following a Change in Control
("Valuation Date"), the Company shall determine the amount of the
contribution which would have been required pursuant to Section 1.5 if
the Change in Control had occurred on such Valuation Date. If the
amount so determined exceeds the fair market value of the Trust assets
on such Valuation Date, the Company shall, within ten business days
following such Valuation Date, make an irrevocable contribution to the
Trust in an amount which is not less than such excess.
1.7 The Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in
trust with the Trustee to augment the principal to be held, administered
and disposed of by the Trustee as provided in this Trust Agreement.
Neither the Trustee nor any Plan participant or beneficiary shall have
any right to compel such additional deposits.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
2.1 The Company shall deliver to the Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect of
each Plan participant (and his or her beneficiaries), or that provides a
formula or other instructions acceptable to the Trustee for determining
the amounts so payable, the form in which such amount is to be paid (as
provided for or available under the Plan), and the time of commencement
for payment of such amounts. Except as otherwise provided herein, the
Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with the most recent Payment Schedule
received by the Trustee. The Trustee shall make provision for the
reporting and withholding of any federal, state or local taxes that may
be required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plan and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by the Company.
2.2 The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by the
Company or such party as it shall designate under the Plan, and any
claim for such benefits shall be considered and reviewed under the
procedures set out in the Plan.
2.3 The Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms
of the Plan. The Company shall notify the Trustee of its decision to
make payment of benefits directly prior to the time amounts are payable
to participants or their beneficiaries. In addition, if the principal
of the Trust, and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the Plan, the
Company shall make the balance of each such payment as it falls due.
The Trustee shall notify the Company where principal and earnings are
not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1 The Trustee shall cease payment of benefits to Plan
participants and their beneficiaries if the Company is Insolvent. The
Company shall be considered "Insolvent" for purposes of this Trust
Agreement if it is unable to pay its debts as they become due, or
if it is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided
in Section 1.4 hereof, the principal and income of the Trust shall be
subject to claims of general creditors of the Company under federal and
state law as set forth below.
a. The Board of Directors and the Chief Executive Officer of
the Company shall have the duty to inform the Trustee in writing of
the Company's Insolvency. If a person claiming to be a creditor of
the Company alleges in writing to the Trustee that the Company has
become Insolvent, the Trustee shall determine whether the Company
is Insolvent and, pending such determination, the Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
b. Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is Insolvent,
the Trustee shall have no duty to inquire whether the Company is
Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for
making a determination concerning the Company's solvency.
c. If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue payments to
Plan participants or their beneficiaries and shall hold the assets
of the Trust for the benefit of the Company's general creditors.
Nothing in this Trust Agreement shall in any way diminish any
rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of the Company with respect to benefits
due under the Plan or otherwise.
d. The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of
this Trust Agreement only after the Trustee has determined that the
Company is not Insolvent (or is no longer Insolvent).
3.3 Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section
3.2 hereof and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of all
payments due to Plan participants or their beneficiaries under the terms
of the Plan for the period of such discontinuance, less the aggregate
amount of any payments made to Plan participants or their beneficiaries
by the Company in lieu of the payments provided for hereunder during any
such period of discontinuance.
SECTION 4
PAYMENTS TO COMPANY
Except as provided in Section 3 hereof, after the Trust has become
irrevocable, the Company shall have no right or power to direct the
Trustee to return to the Company or to divert to others any of the Trust
assets before all payment of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the Plan.
SECTION 5
INVESTMENT AUTHORITY
5.1 Except as otherwise specifically provided herein, and subject
to such investment guidelines as may be adopted by the Company and
delivered to the Trustee, the Trustee may invest, reinvest, and hold the
assets of the Trust in whatever form of investment the Trustee may see
fit (including, but not limited to, contracts or policies of insurance),
and in making or holding such investments, the Trustee shall not be
restricted to those investments which are authorized by the laws of any
state for the investment of trust funds.
5.2 The Company may at any time, and from time to time, appoint
one or more investment managers to manage and control all or any part of
the Trust's assets. Any such investment manager shall be a registered
investment adviser under the Investment Advisers Act of 1940; a bank, as
defined in that Act; or an insurance company that is qualified to
manage, acquire or dispose of the Plan's assets under the laws of more
than one state. Upon receipt of written notice of the appointment of an
investment manager, the Trustee shall segregate the portion of the
assets of the Trust to be managed by the investment manager into a
separate "Investment Manager Account." An investment manager shall
have full discretion and authority to invest, reinvest or dispose of the
Trust assets in its Investment Manager Account, and the Trustee shall
follow the directions of an investment manager with respect to the
investment of Trust assets allocated to such Investment Manager's
Account; provided, however, that if the Trustee shall not have received
contrary instructions from an investment manager, the Trustee may invest
for short term purposes any cash in its custody in short term, cash
equivalent investments or in common or collective funds composed
thereof. To the extent necessary to comply with the directions of an
investment manager, the Trustee may enter into a subtrust agreement with
the investment manager. The Company may terminate the appointment of an
investment manager at any time, in which event the Company shall either
appoint a successor to such investment manager or direct the Trustee to
return the assets in the Investment Manager's Account to the
unsegregated portion of the Trust.
SECTION 6
DISPOSITION OF INCOME
During the term of this Trust, all income received by the Trust,
net of expenses and taxes, shall be accumulated and reinvested.
SECTION 7
ACCOUNTING BY TRUSTEE
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
required to be made, including such specific records as shall be agreed
upon in writing between the Company and the Trustee. Within 60 days
following the close of each calendar year, and within 60 days after the
removal or resignation of the Trustee, the Trustee shall deliver to the
Company a written account of its administration of the Trust during such
year or during the period from the close of the last preceding year to
the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including
a description of all securities and investments purchased and sold with
the cost or net proceeds of such purchases or sales (accrued interest
paid or receivable being shown separately), and showing all cash,
securities and other property held in the Trust at the end of such year
or as of the date of such removal or resignation, as the case may be.
SECTION 8
RESPONSIBILITY OF TRUSTEE
8.1 The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person
acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims;
provided, however, that the Trustee shall incur no liability to any
person for any action taken pursuant to a direction, request or approval
given by the Company or an investment manager which is contemplated by,
and in conformity with, the terms of the Plan or this Trust and is given
in writing by the Company or such investment manager. In the event of a
dispute between the Company and a party, the Trustee may apply to a
court of competent jurisdiction to resolve the dispute.
8.2 If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee
against the Trustee's costs, expenses and liabilities (including,
without limitation, attorneys' fees and expenses) relating thereto and
to be primarily liable for such payments. If the Company does not pay
such costs, expenses and liabilities in a reasonably timely manner, the
Trustee may obtain payment from the Trust.
8.3 The Trustee may consult with legal counsel (who may also be
counsel for the Company generally) with respect to any of its duties or
obligations hereunder.
8.4 The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals to
assist it in performing any of its duties or obligations hereunder, and
may reasonably compensate them out of the Trust assets.
8.5 The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly provided
otherwise herein; provided, however, that if an insurance policy is held
as an asset of the Trust, the Trustee shall have no power to name a
beneficiary of the policy other than the Trust, to assign the policy (as
distinct from conversion of the policy to a different form) other than
to a successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
8.6 Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or to applicable law, the Trustee shall not have
any power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom, within the meaning of section
301.7700-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue Code.
SECTION 9
COMPENSATION AND EXPENSES OF TRUSTEE
The Company shall pay all administrative and the Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from the
Trust.
SECTION 10
RESIGNATION OR REMOVAL OF TRUSTEE
10.1 The Trustee may resign at any time by written notice to the
Company, which shall be effective 30 days after receipt of such notice
unless the Company and the Trustee agree otherwise.
10.2 Prior to a Change in Control, the Trustee may be removed by
the Company on 30 days notice or upon shorter notice accepted by the
Trustee. Following a Change in Control, the Trustee may not be removed
by the Company unless 65% of all directors or former directors of the
Company who are or may become entitled to the payment of benefits
pursuant to the Plan consent in writing to such removal.
10.3 Upon resignation or removal of the Trustee and appointment of
a successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within 30 days after
receipt of notice of resignation, removal or transfer, unless the
Company extends the time limit.
10.4 If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date
of resignation or removal under Section 10.1 or 10.2 of this section.
If no such appointment has been made, the Trustee may appoint a
successor Trustee or it may apply to a court of competent jurisdiction
for appointment of a successor or for instructions. All expenses of the
Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
11.1 If the Trustee resigns or is removed in accordance with
Section 10.1 or 10.2 hereof, the Company, or if a Change in Control
shall previously have occurred the Company and at least 65% of all
directors or former directors of the Company who are or may become
entitled to the payment of benefits pursuant to the Plan, may appoint
any third party, such as a bank trust department or other party that may
be granted corporate trustee powers under state law, as a successor to
replace the Trustee upon resignation or removal. The appointment shall
be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership
rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by the Company or the
successor Trustee to evidence the transfer.
11.2 The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 7 and 8 hereof. The successor Trustee shall not be
responsible for and the Company shall indemnify and defend the successor
Trustee from any claim or liability resulting from any action or
inaction of any prior Trustee or from any other past event or any
condition existing at the time it becomes a successor Trustee.
SECTION 12
AMENDMENT OR TERMINATION
12.1 This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the foregoing,
no such amendment shall conflict with the terms of the Plan or shall
make the Trust revocable after it has become irrevocable in accordance
with Section 1.2 hereof.
12.2 The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plan. Upon termination of the Trust any
assets remaining in the Trust shall be returned to the Company.
12.3 Notwithstanding the foregoing:
a. This Trust Agreement may not be amended by the Company
prior to a Change in Control without the written approval of any
Plan participant or beneficiary whose rights or protections under
a Plan or this Agreement may be reduced, impaired, or otherwise
adversely affected by the amendment.
b. This Trust Agreement may not be amended by the Company
following a Change in Control without the written approval of all
directors or former directors of the Company who are, or may
become, entitled to the payment of benefits pursuant to the Plan.
c. The Company may terminate this Trust prior to the date
specified in Section 12.2 upon the written approval of all
directors or former directors of the Company who are or may become
entitled to the payment of benefits pursuant to the Plan.
SECTION 13
MISCELLANEOUS
13.1 Any provision of this Trust Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
13.2 Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at
law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable
process.
13.3 This Trust Agreement shall be governed by and construed in
accordance with the laws of Iowa, except to the extent the same are
preempted by federal law.
13.4 This Trust Agreement shall be binding upon, and shall inure to
the benefit of, any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the
business or assets of the Company. The Company (and any successor to
the Company) may not otherwise assign its obligations under this Trust
Agreement without the prior written approval of all employees or former
employees of the Company who are, or may become, entitled to the payment
of benefits pursuant to the Plans; provided, however, that, subsequent
to the merger of the Company with WPL Holdings, Inc. and Interstate
Power Company in accordance with the Agreement and Plan of Merger dated
November 10, 1995, as amended, and prior to a Change in Control, the
Company (or its successor) may assign its obligations under this
agreement to any corporation, 100% of the stock of which is owned
(either directly or through one or more subsidiaries) by the entity
resulting from such merger.
13.5 For the purposes of this Trust Agreement, Change in Control
shall mean:
a. the purchase or other acquisition by any person, entity
or group of persons, within the meaning of section 13(d) or 14(d)
of the Securities Exchange Act of 1934, or any comparable successor
provisions, of ownership (within the meaning of Rule 13d-3
promulgated under that Act) of 20% or more of the combined voting
power of the Company's outstanding voting securities entitled to
vote generally in the election of directors;
b. the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect
to which persons who were stockholders of the Company immediately
prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than 50% of the combined voting
power of the reorganized, merged or consolidated entity's then
outstanding securities entitled to vote generally in the election
of directors;
c. the approval by the stockholders of the Company of a
liquidation or dissolution of the Company or of the sale of all or
substantially all of the Company's assets; or
d. the failure of individuals who were Directors of the
Company at the beginning of any two consecutive year period
(including, for this purpose, any new Director whose election or
nomination for election was approved by a vote of at least two-
thirds of the Directors then still in office who were Directors at
the beginning of such period) to constitute a majority of the
Company's Board of Directors;
provided, however, that the merger of the Company with WPL Holdings,
Inc. and Interstate Power Company in accordance with the Agreement and
Plan of Merger dated November 10, 1995, as amended, shall not constitute
a Change in Control unless and until the resulting corporation fails to
make any payment due pursuant to the Plan at the time such payment is
due.
SECTION 14
EFFECTIVE DATE
The effective date of this Trust Agreement shall be August 1, 1997.
* * * * *
IN WITNESS WHEREOF, this instrument has been executed as of the day
and year last above written.
IES INDUSTRIES INC.
By:
Larry D. Root
President & Chief Operating Officer
NORWEST BANK IOWA, N.A.
By:
Charles W. Hippee
Employee Benefits Manager
EXHIBIT 10(d)
IES INDUSTRIES INC. GRANTOR TRUST
FOR DEFERRED COMPENSATION AGREEMENTS
THIS AGREEMENT, made this 15th day of August, 1997, by and between
IES INDUSTRIES INC. ("the Company") and NORWEST BANK IOWA, N.A. (the
"Trustee");
W I T N E S S E T H:
WHEREAS, the Company has adopted or entered into the nonqualified
deferred compensation plans and agreements (the "Plans") listed in
Appendix A;
WHEREAS, the Company has incurred or expects to incur liability
under the terms of such Plans with respect to the individuals
participating in such Plans;
WHEREAS, the Company wishes to establish a trust (the "Trust") and
to contribute to the Trust assets that shall be held therein, subject to
the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the
Plans;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Plans as unfunded plans maintained for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees for purposes of Title I of the Employee Retirement
Income Security Act of 1974; and
WHEREAS, it is the intention of the Company to make contributions
to the Trust to provide itself with a source of funds to assist it in
the meeting of its liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
1.1 The Company hereby deposits with the Trustee, in trust, the
sum of $1,000, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust
Agreement.
1.2 The Trust hereby established shall be irrevocable.
1.3 The Trust is intended to be a grantor trust, of which the
Company is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
1.4 The principal of the Trust, and any earnings thereon, shall be
held separate and apart from other funds of the Company and shall be
used exclusively for the uses and purposes of Plan participants and
general creditors as herein set forth. Plan participants and their
beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against
the Company. Any assets held by the Trust will be subject to the claims
of the Company's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3.1 herein.
1.5 Within ten business days following a Change in Control, the
Company shall make an irrevocable contribution to the Trust in an amount
that is equal to the sum of the participants' and beneficiaries' account
balances established pursuant to the terms of the Plans as of the date
of the Change in Control.
1.6 As of each December 31 following a Change in Control
("Valuation Date"), the Company shall determine the amount of the
contribution which would have been required pursuant to Section 1.5 if
the Change in Control had occurred on such Valuation Date. If the
amount so determined exceeds the fair market value of the Trust assets
on such Valuation Date, the Company shall, within ten business days
following such Valuation Date, make an irrevocable contribution to the
Trust in an amount which is not less than such excess.
1.7 The Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in
trust with the Trustee to augment the principal to be held, administered
and disposed of by the Trustee as provided in this Trust Agreement.
Neither the Trustee nor any Plan participant or beneficiary shall have
any right to compel such additional deposits.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
2.1 The Company shall deliver to the Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect of
each Plan participant (and his or her beneficiaries), or that provides a
formula or other instructions acceptable to the Trustee for determining
the amounts so payable, the form in which such amount is to be paid (as
provided for or available under the Plans), and the time of commencement
for payment of such amounts. Except as otherwise provided herein, the
Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with the most recent Payment Schedule
received by the Trustee. The Trustee shall make provision for the
reporting and withholding of any federal, state or local taxes that may
be required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plans and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by the Company.
2.2 The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plans shall be determined by the
Company or such party as it shall designate under the Plans, and any
claim for such benefits shall be considered and reviewed under the
procedures set out in the Plans.
2.3 The Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms
of the Plans. The Company shall notify the Trustee of its decision to
make payment of benefits directly prior to the time amounts are payable
to participants or their beneficiaries. In addition, if the principal
of the Trust, and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the Plans, the
Company shall make the balance of each such payment as it falls due.
The Trustee shall notify the Company where principal and earnings are
not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1 The Trustee shall cease payment of benefits to Plan
participants and their beneficiaries if the Company is Insolvent. The
Company shall be considered "Insolvent" for purposes of this Trust
Agreement if it is unable to pay its debts as they become due, or
if it is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided
in Section 1.4 hereof, the principal and income of the Trust shall be
subject to claims of general creditors of the Company under federal and
state law as set forth below.
a. The Board of Directors and the Chief Executive Officer of
the Company shall have the duty to inform the Trustee in writing of
the Company's Insolvency. If a person claiming to be a creditor of
the Company alleges in writing to the Trustee that the Company has
become Insolvent, the Trustee shall determine whether the Company
is Insolvent and, pending such determination, the Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
b. Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is Insolvent,
the Trustee shall have no duty to inquire whether the Company is
Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for
making a determination concerning the Company's solvency.
c. If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue payments to
Plan participants or their beneficiaries and shall hold the assets
of the Trust for the benefit of the Company's general creditors.
Nothing in this Trust Agreement shall in any way diminish any
rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of the Company with respect to benefits
due under the Plans or otherwise.
d. The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of
this Trust Agreement only after the Trustee has determined that the
Company is not Insolvent (or is no longer Insolvent).
3.3 Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section
3.2 hereof and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of all
payments due to Plan participants or their beneficiaries under the terms
of the Plans for the period of such discontinuance, less the aggregate
amount of any payments made to Plan participants or their beneficiaries
by the Company in lieu of the payments provided for hereunder during any
such period of discontinuance.
SECTION 4
PAYMENTS TO COMPANY
Except as provided in Section 3 hereof, after the Trust has become
irrevocable, the Company shall have no right or power to direct the
Trustee to return to the Company or to divert to others any of the Trust
assets before all payment of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the Plans.
SECTION 5
INVESTMENT AUTHORITY
5.1 Except as otherwise specifically provided herein, and subject
to such investment guidelines as may be adopted by the Company and
delivered to the Trustee, the Trustee may invest, reinvest, and hold the
assets of the Trust in whatever form of investment the Trustee may see
fit (including, but not limited to, contracts or policies of insurance),
and in making or holding such investments, the Trustee shall not be
restricted to those investments which are authorized by the laws of any
state for the investment of trust funds.
5.2 The Company may at any time, and from time to time, appoint
one or more investment managers to manage and control all or any part of
the Trust's assets. Any such investment manager shall be a registered
investment adviser under the Investment Advisers Act of 1940; a bank, as
defined in that Act; or an insurance company that is qualified to
manage, acquire or dispose of the Plans' assets under the laws of more
than one state. Upon receipt of written notice of the appointment of an
investment manager, the Trustee shall segregate the portion of the
assets of the Trust to be managed by the investment manager into a
separate "Investment Manager Account." An investment manager shall
have full discretion and authority to invest, reinvest or dispose of the
Trust assets in its Investment Manager Account, and the Trustee shall
follow the directions of an investment manager with respect to the
investment of Trust assets allocated to such Investment Manager's
Account; provided, however, that if the Trustee shall not have received
contrary instructions from an investment manager, the Trustee may invest
for short term purposes any cash in its custody in short term, cash
equivalent investments or in common or collective funds composed
thereof. To the extent necessary to comply with the directions of an
investment manager, the Trustee may enter into a subtrust agreement with
the investment manager. The Company may terminate the appointment of an
investment manager at any time, in which event the Company shall either
appoint a successor to such investment manager or direct the Trustee to
return the assets in the Investment Manager's Account to the
unsegregated portion of the Trust.
SECTION 6
DISPOSITION OF INCOME
During the term of this Trust, all income received by the Trust,
net of expenses and taxes, shall be accumulated and reinvested.
SECTION 7
ACCOUNTING BY TRUSTEE
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
required to be made, including such specific records as shall be agreed
upon in writing between the Company and the Trustee. Within 60 days
following the close of each calendar year, and within 60 days after the
removal or resignation of the Trustee, the Trustee shall deliver to the
Company a written account of its administration of the Trust during such
year or during the period from the close of the last preceding year to
the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including
a description of all securities and investments purchased and sold with
the cost or net proceeds of such purchases or sales (accrued interest
paid or receivable being shown separately), and showing all cash,
securities and other property held in the Trust at the end of such year
or as of the date of such removal or resignation, as the case may be.
SECTION 8
RESPONSIBILITY OF TRUSTEE
8.1 The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person
acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims;
provided, however, that the Trustee shall incur no liability to any
person for any action taken pursuant to a direction, request or approval
given by the Company or an investment manager which is contemplated by,
and in conformity with, the terms of the Plans or this Trust and is
given in writing by the Company or such investment manager. In the
event of a dispute between the Company and a party, the Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
8.2 If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee
against the Trustee's costs, expenses and liabilities (including,
without limitation, attorneys' fees and expenses) relating thereto and
to be primarily liable for such payments. If the Company does not pay
such costs, expenses and liabilities in a reasonably timely manner, the
Trustee may obtain payment from the Trust.
8.3 The Trustee may consult with legal counsel (who may also be
counsel for the Company generally) with respect to any of its duties or
obligations hereunder.
8.4 The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals to
assist it in performing any of its duties or obligations hereunder, and
may reasonably compensate them out of the Trust assets.
8.5 The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly provided
otherwise herein; provided, however, that if an insurance policy is held
as an asset of the Trust, the Trustee shall have no power to name a
beneficiary of the policy other than the Trust, to assign the policy (as
distinct from conversion of the policy to a different form) other than
to a successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
8.6 Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or to applicable law, the Trustee shall not have
any power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom, within the meaning of section
301.7700-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue Code.
SECTION 9
COMPENSATION AND EXPENSES OF TRUSTEE
The Company shall pay all administrative and the Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from the
Trust.
SECTION 10
RESIGNATION OR REMOVAL OF TRUSTEE
10.1 The Trustee may resign at any time by written notice to the
Company, which shall be effective 30 days after receipt of such notice
unless the Company and the Trustee agree otherwise.
10.2 Prior to a Change in Control, the Trustee may be removed by
the Company on 30 days notice or upon shorter notice accepted by the
Trustee. Following a Change in Control, the Trustee may not be removed
by the Company unless 65% of all employees or former employees of the
Company who are or may become entitled to the payment of benefits
pursuant to the Plans consent in writing to such removal.
10.3 Upon resignation or removal of the Trustee and appointment of
a successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within 30 days after
receipt of notice of resignation, removal or transfer, unless the
Company extends the time limit.
10.4 If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date
of resignation or removal under Section 10.1 or 10.2 of this section.
If no such appointment has been made, the Trustee may appoint a
successor Trustee or it may apply to a court of competent jurisdiction
for appointment of a successor or for instructions. All expenses of the
Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
11.1 If the Trustee resigns or is removed in accordance with
Section 10.1 or 10.2 hereof, the Company, or if a Change in Control
shall previously have occurred the Company and at least 65% of all
employees or former employees of the Company who are or may become
entitled to the payment of benefits pursuant to the Plans, may appoint
any third party, such as a bank trust department or other party that may
be granted corporate trustee powers under state law, as a successor to
replace the Trustee upon resignation or removal. The appointment shall
be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership
rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by the Company or the
successor Trustee to evidence the transfer.
11.2 The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 7 and 8 hereof. The successor Trustee shall not be
responsible for and the Company shall indemnify and defend the successor
Trustee from any claim or liability resulting from any action or
inaction of any prior Trustee or from any other past event or any
condition existing at the time it becomes a successor Trustee.
SECTION 12
AMENDMENT OR TERMINATION
12.1 This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the foregoing,
no such amendment shall conflict with the terms of the Plans or shall
make the Trust revocable after it has become irrevocable in accordance
with Section 1.2 hereof.
12.2 The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plans. Upon termination of the Trust any
assets remaining in the Trust shall be returned to the Company.
12.3 Notwithstanding the foregoing:
a. This Trust Agreement may not be amended by the Company
prior to a Change in Control without the written approval of any
Plan participant or beneficiary whose rights or protections under
a Plan or this Agreement may be reduced, impaired, or otherwise
adversely affected by the amendment.
b. This Trust Agreement may not be amended by the Company
following a Change in Control without the written approval of all
employees or former employees of the Company who are, or may
become, entitled to the payment of benefits pursuant to the Plans.
c. The Company may terminate this Trust prior to the date
specified in Section 12.2 upon the written approval of all
employees or former employees of the Company who are or may become
entitled to the payment of benefits pursuant to the Plans.
SECTION 13
MISCELLANEOUS
13.1 Any provision of this Trust Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
13.2 Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at
law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable
process.
13.3 This Trust Agreement shall be governed by and construed in
accordance with the laws of Iowa, except to the extent the same are
preempted by federal law.
13.4 This Trust Agreement shall be binding upon, and shall inure to
the benefit of, any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the
business or assets of the Company. The Company (and any successor to
the Company) may not otherwise assign its obligations under this Trust
Agreement without the prior written approval of all employees or former
employees of the Company who are, or may become, entitled to the payment
of benefits pursuant to the Plans; provided, however, that, subsequent
to the merger of the Company with WPL Holdings, Inc. and Interstate
Power Company in accordance with the Agreement and Plan of Merger dated
November 10, 1995, as amended, and prior to a Change in Control, the
Company (or its successor) may assign its obligations under this
agreement to any corporation, 100% of the stock of which is owned
(either directly or through one or more subsidiaries) by the entity
resulting from such merger.
13.5 For the purposes of this Trust Agreement, Change in Control
shall mean:
a. the purchase or other acquisition by any person, entity
or group of persons, within the meaning of section 13(d) or 14(d)
of the Securities Exchange Act of 1934, or any comparable successor
provisions, of ownership (within the meaning of Rule 13d-3
promulgated under that Act) of 20% or more of the combined voting
power of the Company's outstanding voting securities entitled to
vote generally in the election of directors;
b. the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect
to which persons who were stockholders of the Company immediately
prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than 50% of the combined voting
power of the reorganized, merged or consolidated entity's then
outstanding securities entitled to vote generally in the election
of directors;
c. the approval by the stockholders of the Company of a
liquidation or dissolution of the Company or of the sale of all or
substantially all of the Company's assets; or
d. the failure of individuals who were Directors of the
Company at the beginning of any two consecutive year period
(including, for this purpose, any new Director whose election or
nomination for election was approved by a vote of at least two-
thirds of the Directors then still in office who were Directors at
the beginning of such period) to constitute a majority of the
Company's Board of Directors;
provided, however, that the merger of the Company with WPL Holdings,
Inc. and Interstate Power Company in accordance with the Agreement and
Plan of Merger dated November 10, 1995, as amended, shall not constitute
a Change in Control unless and until the resulting corporation fails to
make any payment due pursuant to a Plan at the time such payment is due.
SECTION 14
EFFECTIVE DATE
The effective date of this Trust Agreement shall be August 1, 1997.
* * * * *
IN WITNESS WHEREOF, this instrument has been executed as of the day
and year last above written.
IES INDUSTRIES INC.
By:
Larry D. Root
President & Chief Operating Officer
NORWEST BANK IOWA, N.A.
By:
Charles W. Hippee
Employee Benefits Manager
APPENDIX A
PLANS
The following plans and agreements shall be funded through the
Trust:
Burton, Clarence L., Retired
Duncan, Larry J.
Eibes, Tim J.
Ekstrom, Dean E.
Helbling, John K.
Heyer, Patricia R., Term.
Kratchmer, John E.
Kucharski, Robert J., Retired
Lindell, Christopher J.
Liu, Lee
Rivinius-Portz, Wendy A.
Rogoff, Jonathan M.
Root, Larry D., Retired
Schmidt, Joel J.
Seldon, Thomas R., Retired
Thompson, Joan M.
Treangen, Paul H.
Vogt, James, Retired
Bevis, Wayne J., Director
Newman, Jack R., Director
Ray, Robert D., Director
Royer, Henry, Director
Schultz, Robert W., Director
Weiler, Anthony R., Director
Scherling, Richard, Director
Nussbaum, Leo, Director
Levy, Solomon, Director
EXHIBIT 10(e)
IES INDUSTRIES INC. GRANTOR TRUST
FOR SUPPLEMENTAL RETIREMENT AGREEMENTS
THIS AGREEMENT, made this 15th day of August, 1997, by and
between IES INDUSTRIES INC. ("the Company") and NORWEST BANK
IOWA, N.A. (the "Trustee");
W I T N E S S E T H:
WHEREAS, the Company has adopted or entered into the
nonqualified supplemental retirement plans and agreements (the
"Plans") listed in Appendix A;
WHEREAS, the Company has incurred or expects to incur
liability under the terms of such Plans with respect to the
individuals participating in such Plans;
WHEREAS, the Company wishes to establish a trust (the
"Trust") and to contribute to the Trust assets that shall be held
therein, subject to the claims of the Company's creditors in the
event of the Company's Insolvency, as herein defined, until paid
to Plan participants and their beneficiaries in such manner and
at such times as specified in the Plans;
WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect the
status of the Plans as unfunded plans maintained for the purpose
of providing deferred compensation for a select group of
management or highly compensated employees for purposes of Title
I of the Employee Retirement Income Security Act of 1974; and
WHEREAS, it is the intention of the Company to make
contributions to the Trust to provide itself with a source of
funds to assist it in the meeting of its liabilities under the
Plans;
NOW, THEREFORE, the parties do hereby establish the Trust
and agree that the Trust shall be comprised, held and disposed of
as follows:
SECTION 1
ESTABLISHMENT OF TRUST
1.1 The Company hereby deposits with the Trustee, in trust,
the sum of $1,000, which shall become the principal of the Trust
to be held, administered and disposed of by the Trustee as
provided in this Trust Agreement.
1.2 The Trust hereby established shall be irrevocable.
1.3 The Trust is intended to be a grantor trust, of which
the Company is the grantor, within the meaning of subpart E, part
I, subchapter J, chapter 1, subtitle A of the Internal Revenue
Code of 1986, as amended, and shall be construed accordingly.
1.4 The principal of the Trust, and any earnings thereon,
shall be held separate and apart from other funds of the Company
and shall be used exclusively for the uses and purposes of Plan
participants and general creditors as herein set forth. Plan
participants and their beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of
the Trust. Any rights created under the Plans and this Trust
Agreement shall be mere unsecured contractual rights of Plan
participants and their beneficiaries against the Company. Any
assets held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3.1 herein.
1.5 Within ten business days following a Change in Control,
the Company shall make an irrevocable contribution to the Trust
in an amount that is not less than the sum of the payments,
determined on an undiscounted basis, which are then due or which
may thereafter become due to participants or beneficiaries
pursuant to the terms of the Plans.
1.6 As of each December 31 following a Change in Control
("Valuation Date"), the Company shall determine the amount of the
contribution which would have been required pursuant to Section
1.5 if the Change in Control had occurred on such Valuation Date.
If the amount so determined exceeds the fair market value of the
Trust assets on such Valuation Date, the Company shall, within
ten business days following such Valuation Date, make an
irrevocable contribution to the Trust in an amount which is not
less than such excess.
1.7 The Company, in its sole discretion, may at any time,
or from time to time, make additional deposits of cash or other
property in trust with the Trustee to augment the principal to be
held, administered and disposed of by the Trustee as provided in
this Trust Agreement. Neither the Trustee nor any Plan
participant or beneficiary shall have any right to compel such
additional deposits.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
2.1 The Company shall deliver to the Trustee a schedule
(the "Payment Schedule") that indicates the amounts payable in
respect of each Plan participant (and his or her beneficiaries),
or that provides a formula or other instructions acceptable to
the Trustee for determining the amounts so payable, the form in
which such amount is to be paid (as provided for or available
under the Plans), and the time of commencement for payment of
such amounts. Except as otherwise provided herein, the Trustee
shall make payments to the Plan participants and their
beneficiaries in accordance with the most recent Payment Schedule
received by the Trustee. The Trustee shall make provision for
the reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to the
payment of benefits pursuant to the terms of the Plans and shall
pay amounts withheld to the appropriate taxing authorities or
determine that such amounts have been reported, withheld and paid
by the Company.
2.2 The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plans shall be determined by
the Company or such party as it shall designate under the Plans,
and any claim for such benefits shall be considered and reviewed
under the procedures set out in the Plans.
2.3 The Company may make payment of benefits directly to
Plan participants or their beneficiaries as they become due under
the terms of the Plans. The Company shall notify the Trustee of
its decision to make payment of benefits directly prior to the
time amounts are payable to participants or their beneficiaries.
In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in
accordance with the terms of the Plans, the Company shall make
the balance of each such payment as it falls due. The Trustee
shall notify the Company where principal and earnings are not
sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1 The Trustee shall cease payment of benefits to Plan
participants and their beneficiaries if the Company is Insolvent.
The Company shall be considered "Insolvent" for purposes of this
Trust Agreement if it is unable to pay its debts as they become
due, or if it is subject to a pending proceeding as a debtor under the
United States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as
provided in Section 1.4 hereof, the principal and income of the
Trust shall be subject to claims of general creditors of the
Company under federal and state law as set forth below.
a. The Board of Directors and the Chief Executive
Officer of the Company shall have the duty to inform the
Trustee in writing of the Company's Insolvency. If a person
claiming to be a creditor of the Company alleges in writing
to the Trustee that the Company has become Insolvent, the
Trustee shall determine whether the Company is Insolvent
and, pending such determination, the Trustee shall
discontinue payment of benefits to Plan participants or
their beneficiaries.
b. Unless the Trustee has actual knowledge of the
Company's Insolvency, or has received notice from the
Company or a person claiming to be a creditor alleging that
the Company is Insolvent, the Trustee shall have no duty to
inquire whether the Company is Insolvent. The Trustee may
in all events rely on such evidence concerning the Company's
solvency as may be furnished to the Trustee and that
provides the Trustee with a reasonable basis for making a
determination concerning the Company's solvency.
c. If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue payments
to Plan participants or their beneficiaries and shall hold
the assets of the Trust for the benefit of the Company's
general creditors. Nothing in this Trust Agreement shall in
any way diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of
the Company with respect to benefits due under the Plans or
otherwise.
d. The Trustee shall resume the payment of benefits
to Plan participants or their beneficiaries in accordance
with Section 2 of this Trust Agreement only after the
Trustee has determined that the Company is not Insolvent (or
is no longer Insolvent).
3.3 Provided that there are sufficient assets, if the
Trustee discontinues the payment of benefits from the Trust
pursuant to Section 3.2 hereof and subsequently resumes such
payments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plans
for the period of such discontinuance, less the aggregate amount
of any payments made to Plan participants or their beneficiaries
by the Company in lieu of the payments provided for hereunder
during any such period of discontinuance.
SECTION 4
PAYMENTS TO COMPANY
Except as provided in Section 3 hereof, after the Trust has
become irrevocable, the Company shall have no right or power to
direct the Trustee to return to the Company or to divert to
others any of the Trust assets before all payment of benefits
have been made to Plan participants and their beneficiaries
pursuant to the terms of the Plans.
SECTION 5
INVESTMENT AUTHORITY
5.1 Except as otherwise specifically provided herein, and
subject to such investment guidelines as may be adopted by the
Company and delivered to the Trustee, the Trustee may invest,
reinvest, and hold the assets of the Trust in whatever form of
investment the Trustee may see fit (including, but not limited
to, contracts or policies of insurance), and in making or holding
such investments, the Trustee shall not be restricted to those
investments which are authorized by the laws of any state for the
investment of trust funds.
5.2 The Company may at any time, and from time to time,
appoint one or more investment managers to manage and control all
or any part of the Trust's assets. Any such investment manager
shall be a registered investment adviser under the Investment
Advisers Act of 1940; a bank, as defined in that Act; or an
insurance company that is qualified to manage, acquire or dispose
of the Plans' assets under the laws of more than one state. Upon
receipt of written notice of the appointment of an investment
manager, the Trustee shall segregate the portion of the assets of
the Trust to be managed by the investment manager into a separate
"Investment Manager Account." An investment manager shall have
full discretion and authority to invest, reinvest or dispose of
the Trust assets in its Investment Manager Account, and the
Trustee shall follow the directions of an investment manager with
respect to the investment of Trust assets allocated to such
Investment Manager's Account; provided, however, that if the
Trustee shall not have received contrary instructions from an
investment manager, the Trustee may invest for short term
purposes any cash in its custody in short term, cash equivalent
investments or in common or collective funds composed thereof.
To the extent necessary to comply with the directions of an
investment manager, the Trustee may enter into a subtrust
agreement with the investment manager. The Company may terminate
the appointment of an investment manager at any time, in which
event the Company shall either appoint a successor to such
investment manager or direct the Trustee to return the assets in
the Investment Manager's Account to the unsegregated portion of
the Trust.
SECTION 6
DISPOSITION OF INCOME
During the term of this Trust, all income received by the
Trust, net of expenses and taxes, shall be accumulated and
reinvested.
SECTION 7
ACCOUNTING BY TRUSTEE
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
required to be made, including such specific records as shall be
agreed upon in writing between the Company and the Trustee.
Within 60 days following the close of each calendar year, and
within 60 days after the removal or resignation of the Trustee,
the Trustee shall deliver to the Company a written account of its
administration of the Trust during such year or during the period
from the close of the last preceding year to the date of such
removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued
interest paid or receivable being shown separately), and showing
all cash, securities and other property held in the Trust at the
end of such year or as of the date of such removal or
resignation, as the case may be.
SECTION 8
RESPONSIBILITY OF TRUSTEE
8.1 The Trustee shall act with the care, skill, prudence
and diligence under the circumstances then prevailing that a
prudent person acting in like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims; provided, however, that the Trustee
shall incur no liability to any person for any action taken
pursuant to a direction, request or approval given by the Company
or an investment manager which is contemplated by, and in
conformity with, the terms of the Plans or this Trust and is
given in writing by the Company or such investment manager. In
the event of a dispute between the Company and a party, the
Trustee may apply to a court of competent jurisdiction to resolve
the dispute.
8.2 If the Trustee undertakes or defends any litigation
arising in connection with this Trust, the Company agrees to
indemnify the Trustee against the Trustee's costs, expenses and
liabilities (including, without limitation, attorneys' fees and
expenses) relating thereto and to be primarily liable for such
payments. If the Company does not pay such costs, expenses and
liabilities in a reasonably timely manner, the Trustee may obtain
payment from the Trust.
8.3 The Trustee may consult with legal counsel (who may
also be counsel for the Company generally) with respect to any of
its duties or obligations hereunder.
8.4 The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals
to assist it in performing any of its duties or obligations
hereunder, and may reasonably compensate them out of the Trust
assets.
8.5 The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly
provided otherwise herein; provided, however, that if an
insurance policy is held as an asset of the Trust, the Trustee
shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion
of the policy to a different form) other than to a successor
Trustee, or to loan to any person the proceeds of any borrowing
against such policy.
8.6 Notwithstanding any powers granted to the Trustee
pursuant to this Trust Agreement or to applicable law, the
Trustee shall not have any power that could give this Trust the
objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7700-2 of the
Procedure and Administrative Regulations promulgated pursuant to
the Internal Revenue Code.
SECTION 9
COMPENSATION AND EXPENSES OF TRUSTEE
The Company shall pay all administrative and the Trustee's
fees and expenses. If not so paid, the fees and expenses shall
be paid from the Trust.
SECTION 10
RESIGNATION OR REMOVAL OF TRUSTEE
10.1 The Trustee may resign at any time by written notice to
the Company, which shall be effective 30 days after receipt of
such notice unless the Company and the Trustee agree otherwise.
10.2 Prior to a Change in Control, the Trustee may be
removed by the Company on 30 days notice or upon shorter notice
accepted by the Trustee. Following a Change in Control, the
Trustee may not be removed by the Company unless 65% of all
employees or former employees of the Company who are or may
become entitled to the payment of benefits pursuant to the Plans
consent in writing to such removal.
10.3 Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall subsequently
be transferred to the successor Trustee. The transfer shall be
completed within 30 days after receipt of notice of resignation,
removal or transfer, unless the Company extends the time limit.
10.4 If the Trustee resigns or is removed, a successor shall
be appointed, in accordance with Section 11 hereof, by the
effective date of resignation or removal under Section 10.1 or
10.2 of this section. If no such appointment has been made, the
Trustee may appoint a successor Trustee or it may apply to a
court of competent jurisdiction for appointment of a successor or
for instructions. All expenses of the Trustee in connection with
the proceeding shall be allowed as administrative expenses of the
Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
11.1 If the Trustee resigns or is removed in accordance with
Section 10.1 or 10.2 hereof, the Company, or if a Change in
Control shall previously have occurred the Company and at least
65% of all employees or former employees of the Company who are
or may become entitled to the payment of benefits pursuant to the
Plans, may appoint any third party, such as a bank trust
department or other party that may be granted corporate trustee
powers under state law, as a successor to replace the Trustee
upon resignation or removal. The appointment shall be effective
when accepted in writing by the new Trustee, who shall have all
of the rights and powers of the former Trustee, including
ownership rights in the Trust assets. The former Trustee shall
execute any instrument necessary or reasonably requested by the
Company or the successor Trustee to evidence the transfer.
11.2 The successor Trustee need not examine the records and
acts of any prior Trustee and may retain or dispose of existing
Trust assets, subject to Sections 7 and 8 hereof. The successor
Trustee shall not be responsible for and the Company shall
indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior
Trustee or from any other past event or any condition existing at
the time it becomes a successor Trustee.
SECTION 12
AMENDMENT OR TERMINATION
12.1 This Trust Agreement may be amended by a written
instrument executed by the Trustee and the Company.
Notwithstanding the foregoing, no such amendment shall conflict
with the terms of the Plans or shall make the Trust revocable
after it has become irrevocable in accordance with Section 1.2
hereof.
12.2 The Trust shall not terminate until the date on which
Plan participants and their beneficiaries are no longer entitled
to benefits pursuant to the terms of the Plans. Upon termination
of the Trust any assets remaining in the Trust shall be returned
to the Company.
12.3 Notwithstanding the foregoing:
a. This Trust Agreement may not be amended by the
Company prior to a Change in Control without the written
approval of any Plan participant or beneficiary whose
rights or protections under a Plan or this Agreement may be
reduced, impaired, or otherwise adversely affected by the
amendment.
b. This Trust Agreement may not be amended by the
Company in any respect following a Change in Control without
the written approval of all employees or former employees of
the Company who are, or may become, entitled to the payment
of benefits pursuant to the Plans.
c. The Company may terminate this Trust prior to the
date specified in Section 12.2 upon the written approval of
all employees or former employees of the Company who are or
may become entitled to the payment of benefits pursuant to
the Plans.
SECTION 13
MISCELLANEOUS
13.1 Any provision of this Trust Agreement prohibited by law
shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
13.2 Benefits payable to Plan participants and their
beneficiaries under this Trust Agreement may not be anticipated,
assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
13.3 This Trust Agreement shall be governed by and construed
in accordance with the laws of Iowa, except to the extent the
same are preempted by federal law.
13.4 This Trust Agreement shall be binding upon, and shall
inure to the benefit of, any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to
all or substantially all of the business or assets of the
Company. The Company (and any successor to the Company) may not
otherwise assign its obligations under this Trust Agreement
without the prior written approval of all employees or former
employees of the Company who are, or may become, entitled to the
payment of benefits pursuant to the Plans; provided, however,
that, subsequent to the merger of the Company with WPL Holdings,
Inc. and Interstate Power Company in accordance with the
Agreement and Plan of Merger dated November 10, 1995, as amended,
and prior to a Change in Control, the Company (or its successor)
may assign its obligations under this agreement to any
corporation, 100% of the stock of which is owned (either directly
or through one or more subsidiaries) by the entity resulting from
such merger.
13.5 For the purposes of this Trust Agreement, Change in
Control shall mean:
a. the purchase or other acquisition by any person,
entity or group of persons, within the meaning of section
13(d) or 14(d) of the Securities Exchange Act of 1934, or
any comparable successor provisions, of ownership (within
the meaning of Rule 13d-3 promulgated under that Act) of 20%
or more of the combined voting power of the Company's
outstanding voting securities entitled to vote generally in
the election of directors;
b. the approval by the stockholders of the Company of
a reorganization, merger or consolidation, in each case,
with respect to which persons who were stockholders of the
Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than
50% of the combined voting power of the reorganized, merged
or consolidated entity's then outstanding securities
entitled to vote generally in the election of directors;
c. the approval by the stockholders of the Company of
a liquidation or dissolution of the Company or of the sale
of all or substantially all of the Company's assets; or
d. the failure of individuals who were Directors of
the Company at the beginning of any two consecutive year
period (including, for this purpose, any new Director whose
election or nomination for election was approved by a vote
of at least two-thirds of the Directors then still in office
who were Directors at the beginning of such period) to
constitute a majority of the Company's Board of Directors;
provided, however, that the merger of the Company with WPL
Holdings, Inc. and Interstate Power Company in accordance with
the Agreement and Plan of Merger dated November 10, 1995, as
amended, shall not constitute a Change in Control unless and
until the resulting corporation fails to make any payment due
pursuant to a Plan at the time such payment is due.
SECTION 14
EFFECTIVE DATE
The effective date of this Trust Agreement shall be August
1, 1997.
* * * * *
IN WITNESS WHEREOF, this instrument has been executed as of
the day and year last above written.
IES INDUSTRIES INC.
By:
Larry D. Root
President & Chief Operating Officer
NORWEST BANK IOWA, N.A.
By:
Charles W. Hippee
Employee Benefits Manager
APPENDIX A
PLANS
The following plans and agreements shall be funded through
the Trust:
Peter W. Dietrich
John F. Franz, Jr.
Lee Liu
Harold W. Rehrauer
Philip D. Ward
Steven W. Southwick
Dean E. Ekstrom
James E. Hoffman
Rene Males
James N. Davidson
Robert F. Lafontaine
Georgia F. Marlowe
Marjorie E. McDonald
Richard W. McGaughy
J. Bernard Rehnstrom
Virgil J. Schmidt
Samuel J. Tuthill
James A. Wallace
Odie R. Woods
Benjamin R. Rosencrants
Robert J. Kucharski
Larry D. Root
Thomas R. Seldon
EXHIBIT 10(f)
IES UTILITIES INC. GRANTOR TRUST
FOR DEFERRED COMPENSATION AGREEMENTS
THIS AGREEMENT, made this 15th day of August, 1997, by and between
IES UTILITIES INC. ("the Company") and NORWEST BANK IOWA, N.A. (the
"Trustee");
W I T N E S S E T H:
WHEREAS, the Company has adopted or entered into the nonqualified
deferred compensation plans and agreements (the "Plans") listed in
Appendix A;
WHEREAS, the Company has incurred or expects to incur liability
under the terms of such Plans with respect to the individuals
participating in such Plans;
WHEREAS, the Company wishes to establish a trust (the "Trust") and
to contribute to the Trust assets that shall be held therein, subject to
the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the
Plans;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Plans as unfunded plans maintained for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees for purposes of Title I of the Employee Retirement
Income Security Act of 1974; and
WHEREAS, it is the intention of the Company to make contributions
to the Trust to provide itself with a source of funds to assist it in
the meeting of its liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
1.1 The Company hereby deposits with the Trustee, in trust, the
sum of $1,000, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust
Agreement.
1.2 The Trust hereby established shall be irrevocable.
1.3 The Trust is intended to be a grantor trust, of which the
Company is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
1.4 The principal of the Trust, and any earnings thereon, shall be
held separate and apart from other funds of the Company and shall be
used exclusively for the uses and purposes of Plan participants and
general creditors as herein set forth. Plan participants and their
beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against
the Company. Any assets held by the Trust will be subject to the claims
of the Company's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3.1 herein.
1.5 Within ten business days following a Change in Control, the
Company shall make an irrevocable contribution to the Trust in an amount
that is equal to the sum of the participants' and beneficiaries' account
balances established pursuant to the terms of the Plans as of the date
of the Change in Control.
1.6 As of each December 31 following a Change in Control
("Valuation Date"), the Company shall determine the amount of the
contribution which would have been required pursuant to Section 1.5 if
the Change in Control had occurred on such Valuation Date. If the
amount so determined exceeds the fair market value of the Trust assets
on such Valuation Date, the Company shall, within ten business days
following such Valuation Date, make an irrevocable contribution to the
Trust in an amount which is not less than such excess.
1.7 The Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in
trust with the Trustee to augment the principal to be held, administered
and disposed of by the Trustee as provided in this Trust Agreement.
Neither the Trustee nor any Plan participant or beneficiary shall have
any right to compel such additional deposits.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
2.1 The Company shall deliver to the Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect of
each Plan participant (and his or her beneficiaries), or that provides a
formula or other instructions acceptable to the Trustee for determining
the amounts so payable, the form in which such amount is to be paid (as
provided for or available under the Plans), and the time of commencement
for payment of such amounts. Except as otherwise provided herein, the
Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with the most recent Payment Schedule
received by the Trustee. The Trustee shall make provision for the
reporting and withholding of any federal, state or local taxes that may
be required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plans and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by the Company.
2.2 The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plans shall be determined by the
Company or such party as it shall designate under the Plans, and any
claim for such benefits shall be considered and reviewed under the
procedures set out in the Plans.
2.3 The Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms
of the Plans. The Company shall notify the Trustee of its decision to
make payment of benefits directly prior to the time amounts are payable
to participants or their beneficiaries. In addition, if the principal
of the Trust, and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the Plans, the
Company shall make the balance of each such payment as it falls due.
The Trustee shall notify the Company where principal and earnings are
not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1 The Trustee shall cease payment of benefits to Plan
participants and their beneficiaries if the Company is Insolvent. The
Company shall be considered "Insolvent" for purposes of this Trust
Agreement if it is unable to pay its debts as they become due, or
if it is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided
in Section 1.4 hereof, the principal and income of the Trust shall be
subject to claims of general creditors of the Company under federal and
state law as set forth below.
a. The Board of Directors and the Chief Executive Officer of
the Company shall have the duty to inform the Trustee in writing of
the Company's Insolvency. If a person claiming to be a creditor of
the Company alleges in writing to the Trustee that the Company has
become Insolvent, the Trustee shall determine whether the Company
is Insolvent and, pending such determination, the Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
b. Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is Insolvent,
the Trustee shall have no duty to inquire whether the Company is
Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for
making a determination concerning the Company's solvency.
c. If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue payments to
Plan participants or their beneficiaries and shall hold the assets
of the Trust for the benefit of the Company's general creditors.
Nothing in this Trust Agreement shall in any way diminish any
rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of the Company with respect to benefits
due under the Plans or otherwise.
d. The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of
this Trust Agreement only after the Trustee has determined that the
Company is not Insolvent (or is no longer Insolvent).
3.3 Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section
3.2 hereof and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of all
payments due to Plan participants or their beneficiaries under the terms
of the Plans for the period of such discontinuance, less the aggregate
amount of any payments made to Plan participants or their beneficiaries
by the Company in lieu of the payments provided for hereunder during any
such period of discontinuance.
SECTION 4
PAYMENTS TO COMPANY
Except as provided in Section 3 hereof, after the Trust has become
irrevocable, the Company shall have no right or power to direct the
Trustee to return to the Company or to divert to others any of the Trust
assets before all payment of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the Plans.
SECTION 5
INVESTMENT AUTHORITY
5.1 Except as otherwise specifically provided herein, and subject
to such investment guidelines as may be adopted by the Company and
delivered to the Trustee, the Trustee may invest, reinvest, and hold the
assets of the Trust in whatever form of investment the Trustee may see
fit (including, but not limited to, contracts or policies of insurance),
and in making or holding such investments, the Trustee shall not be
restricted to those investments which are authorized by the laws of any
state for the investment of trust funds.
5.2 The Company may at any time, and from time to time, appoint
one or more investment managers to manage and control all or any part of
the Trust's assets. Any such investment manager shall be a registered
investment adviser under the Investment Advisers Act of 1940; a bank, as
defined in that Act; or an insurance company that is qualified to
manage, acquire or dispose of the Plans' assets under the laws of more
than one state. Upon receipt of written notice of the appointment of an
investment manager, the Trustee shall segregate the portion of the
assets of the Trust to be managed by the investment manager into a
separate "Investment Manager Account." An investment manager shall
have full discretion and authority to invest, reinvest or dispose of the
Trust assets in its Investment Manager Account, and the Trustee shall
follow the directions of an investment manager with respect to the
investment of Trust assets allocated to such Investment Manager's
Account; provided, however, that if the Trustee shall not have received
contrary instructions from an investment manager, the Trustee may invest
for short term purposes any cash in its custody in short term, cash
equivalent investments or in common or collective funds composed
thereof. To the extent necessary to comply with the directions of an
investment manager. The Company may terminate the appointment of an
investment manager at any time, in which event the Company shall either
appoint a successor to such investment manager or direct the Trustee to
return the assets in the Investment Manager's Account to the
unsegregated portion of the Trust.
SECTION 6
DISPOSITION OF INCOME
During the term of this Trust, all income received by the Trust,
net of expenses and taxes, shall be accumulated and reinvested.
SECTION 7
ACCOUNTING BY TRUSTEE
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
required to be made, including such specific records as shall be agreed
upon in writing between the Company and the Trustee. Within 60 days
following the close of each calendar year, and within 60 days after the
removal or resignation of the Trustee, the Trustee shall deliver to the
Company a written account of its administration of the Trust during such
year or during the period from the close of the last preceding year to
the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including
a description of all securities and investments purchased and sold with
the cost or net proceeds of such purchases or sales (accrued interest
paid or receivable being shown separately), and showing all cash,
securities and other property held in the Trust at the end of such year
or as of the date of such removal or resignation, as the case may be.
SECTION 8
RESPONSIBILITY OF TRUSTEE
8.1 The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person
acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims;
provided, however, that the Trustee shall incur no liability to any
person for any action taken pursuant to a direction, request or approval
given by the Company or an investment manager which is contemplated by,
and in conformity with, the terms of the Plans or this Trust and is
given in writing by the Company or such investment manager. In the
event of a dispute between the Company and a party, the Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
8.2 If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee
against the Trustee's costs, expenses and liabilities (including,
without limitation, attorneys' fees and expenses) relating thereto and
to be primarily liable for such payments. If the Company does not pay
such costs, expenses and liabilities in a reasonably timely manner, the
Trustee may obtain payment from the Trust.
8.3 The Trustee may consult with legal counsel (who may also be
counsel for the Company generally) with respect to any of its duties or
obligations hereunder.
8.4 The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals to
assist it in performing any of its duties or obligations hereunder, and
may reasonably compensate them out of the Trust assets.
8.5 The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly provided
otherwise herein; provided, however, that if an insurance policy is held
as an asset of the Trust, the Trustee shall have no power to name a
beneficiary of the policy other than the Trust, to assign the policy (as
distinct from conversion of the policy to a different form) other than
to a successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
8.6 Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or to applicable law, the Trustee shall not have
any power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom, within the meaning of section
301.7700-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue Code.
SECTION 9
COMPENSATION AND EXPENSES OF TRUSTEE
The Company shall pay all administrative and the Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from the
Trust.
SECTION 10
RESIGNATION OR REMOVAL OF TRUSTEE
10.1 The Trustee may resign at any time by written notice to the
Company, which shall be effective 30 days after receipt of such notice
unless the Company and the Trustee agree otherwise.
10.2 Prior to a Change in Control, the Trustee may be removed by
the Company on 30 days notice or upon shorter notice accepted by the
Trustee. Following a Change in Control, the Trustee may not be removed
by the Company unless 65% of all employees or former employees of the
Company who are or may become entitled to the payment of benefits
pursuant to the Plans consent in writing to such removal.
10.3 Upon resignation or removal of the Trustee and appointment of
a successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within 30 days after
receipt of notice of resignation, removal or transfer, unless the
Company extends the time limit.
10.4 If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date
of resignation or removal under Section 10.1 or 10.2 of this section.
If no such appointment has been made, the Trustee may appoint a
successor Trustee or it may apply to a court of competent jurisdiction
for appointment of a successor or for instructions. All expenses of the
Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
11.1 If the Trustee resigns or is removed in accordance with
Section 10.1 or 10.2 hereof, the Company, or if a Change in Control
shall previously have occurred the Company and at least 65% of all
employees or former employees of the Company who are or may become
entitled to the payment of benefits pursuant to the Plans, may appoint
any third party, such as a bank trust department or other party that may
be granted corporate trustee powers under state law, as a successor to
replace the Trustee upon resignation or removal. The appointment shall
be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership
rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by the Company or the
successor Trustee to evidence the transfer.
11.2 The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 7 and 8 hereof. The successor Trustee shall not be
responsible for and the Company shall indemnify and defend the successor
Trustee from any claim or liability resulting from any action or
inaction of any prior Trustee or from any other past event or any
condition existing at the time it becomes a successor Trustee.
SECTION 12
AMENDMENT OR TERMINATION
12.1 This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the foregoing,
no such amendment shall conflict with the terms of the Plans or shall
make the Trust revocable after it has become irrevocable in accordance
with Section 1.2 hereof.
12.2 The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plans. Upon termination of the Trust any
assets remaining in the Trust shall be returned to the Company.
12.3 Notwithstanding the foregoing:
a. This Trust Agreement may not be amended by the Company
prior to a Change in Control without the written approval of any
Plan participant or beneficiary whose rights or protections under
a Plan or this Agreement may be reduced, impaired, or otherwise
adversely affected by the amendment.
b. This Trust Agreement may not be amended by the Company
following a Change in Control without the written approval of all
employees or former employees of the Company who are, or may
become, entitled to the payment of benefits pursuant to the Plans.
c. The Company may terminate this Trust prior to the date
specified in Section 12.2 upon the written approval of all
employees or former employees of the Company who are or may become
entitled to the payment of benefits pursuant to the Plans.
SECTION 13
MISCELLANEOUS
13.1 Any provision of this Trust Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
13.2 Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at
law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable
process.
13.3 This Trust Agreement shall be governed by and construed in
accordance with the laws of Iowa, except to the extent the same are
preempted by federal law.
13.4 This Trust Agreement shall be binding upon, and shall inure to
the benefit of, any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the
business or assets of the Company. The Company (and any successor to
the Company) may not otherwise assign its obligations under this Trust
Agreement without the prior written approval of all employees or former
employees of the Company who are, or may become, entitled to the payment
of benefits pursuant to the Plans; provided, however, that, subsequent
to the merger of IES Industries Inc. with WPL Holdings, Inc. and
Interstate Power Company in accordance with the Agreement and Plan of
Merger dated November 10, 1995, as amended, and prior to a Change in
Control, the Company (or its successor) may assign its obligations under
this agreement to any corporation, 100% of the stock of which is owned
(either directly or through one or more subsidiaries) by the entity
resulting from such merger.
13.5 For the purposes of this Trust Agreement, Change in Control
shall mean:
a. the purchase or other acquisition by any person, entity
or group of persons, within the meaning of section 13(d) or 14(d)
of the Securities Exchange Act of 1934, or any comparable successor
provisions, of ownership (within the meaning of Rule 13d-3
promulgated under that Act) of 20% or more of the combined voting
power of IES Industries Inc.'s outstanding voting securities
entitled to vote generally in the election of directors;
b. the approval by the stockholders of IES Industries Inc.
of a reorganization, merger or consolidation, in each case, with
respect to which persons who were stockholders of IES Industries
Inc. immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than 50% of
the combined voting power of the reorganized, merged or
consolidated entity's then outstanding securities entitled to vote
generally in the election of directors;
c. the approval by the stockholders of IES Industries Inc.
of a liquidation or dissolution of IES Industries Inc. or of the
sale of all or substantially all of IES Industries Inc.'s assets;
or
d. the failure of individuals who were Directors of IES
Industries Inc. at the beginning of any two consecutive year period
(including, for this purpose, any new Director whose election or
nomination for election was approved by a vote of at least two-
thirds of the Directors then still in office who were Directors at
the beginning of such period) to constitute a majority of IES
Industries Inc.'s Board of Directors;
provided, however, that the merger of IES Industries Inc. with WPL
Holdings, Inc. and Interstate Power Company in accordance with the
Agreement and Plan of Merger dated November 10, 1995, as amended, shall
not constitute a Change in Control unless and until the resulting
corporation fails to make any payment due pursuant to a Plan at the time
such payment is due.
SECTION 14
EFFECTIVE DATE
The effective date of this Trust Agreement shall be August 1, 1997.
* * * * *
IN WITNESS WHEREOF, this instrument has been executed as of the day
and year last above written.
IES UTILITIES INC.
By:
Larry D. Root
President & Chief Operating Officer
NORWEST BANK IOWA, N.A.
By:
Charles W. Hippee
Employee Benefits Manager
APPENDIX A
PLANS
The following plans and agreements shall be funded through the
Trust:
Arnold, Alan J.
Bair, Gerald K., Retired
Baker, Steven C.
Bassett, Thomas W., Retired
Cox, Leland
Derby, Gerrald C., Retired
Douglass, William W. Jr., Retired
Feld, John, Retired
Franz, John F. Jr.
Gladson, Steven, P.
Greenlee, David L., Retired
Gucciardo, Terry A.
Hampsher, Christopher A.
Hannen, Rick
Hollar, Eldon L,, Retired
Holley, Louis J., Retired
Holmes, Robert R.
Jones, Scott V.
Klosterbuer, James A.
Lange, Edward, Retired
Langer, Dundeana K.
Larsen, John, O.
Lausar, Dennis W.
Lessly, Roger E., Retired
Males, Renee, Retired
Mann, Gerald, E., Retired
Matthews, Ernest G. Sr., Retired
McDermott, Michael E.
McGaughy, Richard, Retired
Pates, Virgil J, Retired
Peveler, Kenneth E.
Redfern, John, Retired
Rehnstrom, Bernard, Retired
Rehrauer, Harold W.
Repp, Warren K., Retired
Root , Ervin D.
Sagar, John, Retired
Sloan, Lauren J.
Swails, Stephen L.
Teply, Don, Retired
VanMiddlesworth, Gary D.
Voy, Larry R., Retired
Wagner, Robert E.
Walling, Gary
Ward, Phillip D.
Zhorne, Donald C., Retired
EXHIBIT 10(g)
IES UTILITIES INC. GRANTOR TRUST
FOR SUPPLEMENTAL RETIREMENT AGREEMENTS
THIS AGREEMENT, made this 15th day of August, 1997, by and between
IES UTILITIES INC. ("the Company") and NORWEST BANK IOWA, N.A. (the
"Trustee");
W I T N E S S E T H:
WHEREAS, the Company has adopted or entered into the nonqualified
supplemental retirement plans and agreements (the "Plans") listed in
Appendix A;
WHEREAS, the Company has incurred or expects to incur liability
under the terms of such Plans with respect to the individuals
participating in such Plans;
WHEREAS, the Company wishes to establish a trust (the "Trust") and
to contribute to the Trust assets that shall be held therein, subject to
the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the
Plans;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Plans as unfunded plans maintained for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees for purposes of Title I of the Employee Retirement
Income Security Act of 1974; and
WHEREAS, it is the intention of the Company to make contributions
to the Trust to provide itself with a source of funds to assist it in
the meeting of its liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
1.1 The Company hereby deposits with the Trustee, in trust, the
sum of $1,000, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust
Agreement.
1.2 The Trust hereby established shall be irrevocable.
1.3 The Trust is intended to be a grantor trust, of which the
Company is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
1.4 The principal of the Trust, and any earnings thereon, shall be
held separate and apart from other funds of the Company and shall be
used exclusively for the uses and purposes of Plan participants and
general creditors as herein set forth. Plan participants and their
beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against
the Company. Any assets held by the Trust will be subject to the claims
of the Company's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3.1 herein.
1.5 Within ten business days following a Change in Control, the
Company shall make an irrevocable contribution to the Trust in an amount
that is not less than the sum of the payments, determined on an
undiscounted basis, which are then due or which may thereafter become
due to participants or beneficiaries pursuant to the terms of the Plans.
1.6 As of each December 31 following a Change in Control
("Valuation Date"), the Company shall determine the amount of the
contribution which would have been required pursuant to Section 1.5 if
the Change in Control had occurred on such Valuation Date. If the
amount so determined exceeds the fair market value of the Trust assets
on such Valuation Date, the Company shall, within ten business days
following such Valuation Date, make an irrevocable contribution to the
Trust in an amount which is not less than such excess.
1.7 The Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in
trust with the Trustee to augment the principal to be held, administered
and disposed of by the Trustee as provided in this Trust Agreement.
Neither the Trustee nor any Plan participant or beneficiary shall have
any right to compel such additional deposits.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
2.1 The Company shall deliver to the Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect of
each Plan participant (and his or her beneficiaries), or that provides a
formula or other instructions acceptable to the Trustee for determining
the amounts so payable, the form in which such amount is to be paid (as
provided for or available under the Plans), and the time of commencement
for payment of such amounts. Except as otherwise provided herein, the
Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with the most recent Payment Schedule
received by the Trustee. The Trustee shall make provision for the
reporting and withholding of any federal, state or local taxes that may
be required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plans and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by the Company.
2.2 The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plans shall be determined by the
Company or such party as it shall designate under the Plans, and any
claim for such benefits shall be considered and reviewed under the
procedures set out in the Plans.
2.3 The Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms
of the Plans. The Company shall notify the Trustee of its decision to
make payment of benefits directly prior to the time amounts are payable
to participants or their beneficiaries. In addition, if the principal
of the Trust, and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the Plans, the
Company shall make the balance of each such payment as it falls due.
The Trustee shall notify the Company where principal and earnings are
not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1 The Trustee shall cease payment of benefits to Plan
participants and their beneficiaries if the Company is Insolvent. The
Company shall be considered "Insolvent" for purposes of this Trust
Agreement if it is unable to pay its debts as they become due, or
if it is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided
in Section 1.4 hereof, the principal and income of the Trust shall be
subject to claims of general creditors of the Company under federal and
state law as set forth below.
a. The Board of Directors and the Chief Executive Officer of
the Company shall have the duty to inform the Trustee in writing of
the Company's Insolvency. If a person claiming to be a creditor of
the Company alleges in writing to the Trustee that the Company has
become Insolvent, the Trustee shall determine whether the Company
is Insolvent and, pending such determination, the Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
b. Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is Insolvent,
the Trustee shall have no duty to inquire whether the Company is
Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for
making a determination concerning the Company's solvency.
c. If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue payments to
Plan participants or their beneficiaries and shall hold the assets
of the Trust for the benefit of the Company's general creditors.
Nothing in this Trust Agreement shall in any way diminish any
rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of the Company with respect to benefits
due under the Plans or otherwise.
d. The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of
this Trust Agreement only after the Trustee has determined that the
Company is not Insolvent (or is no longer Insolvent).
3.3 Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section
3.2 hereof and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of all
payments due to Plan participants or their beneficiaries under the terms
of the Plans for the period of such discontinuance, less the aggregate
amount of any payments made to Plan participants or their beneficiaries
by the Company in lieu of the payments provided for hereunder during any
such period of discontinuance.
SECTION 4
PAYMENTS TO COMPANY
Except as provided in Section 3 hereof, after the Trust has become
irrevocable, the Company shall have no right or power to direct the
Trustee to return to the Company or to divert to others any of the Trust
assets before all payment of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the Plans.
SECTION 5
INVESTMENT AUTHORITY
5.1 Except as otherwise specifically provided herein, and subject
to such investment guidelines as may be adopted by the Company and
delivered to the Trustee, the Trustee may invest, reinvest, and hold the
assets of the Trust in whatever form of investment the Trustee may see
fit (including, but not limited to, contracts or policies of insurance),
and in making or holding such investments, the Trustee shall not be
restricted to those investments which are authorized by the laws of any
state for the investment of trust funds.
5.2 The Company may at any time, and from time to time, appoint
one or more investment managers to manage and control all or any part of
the Trust's assets. Any such investment manager shall be a registered
investment adviser under the Investment Advisers Act of 1940; a bank, as
defined in that Act; or an insurance company that is qualified to
manage, acquire or dispose of the Plans' assets under the laws of more
than one state. Upon receipt of written notice of the appointment of an
investment manager, the Trustee shall segregate the portion of the
assets of the Trust to be managed by the investment manager into a
separate "Investment Manager Account." An investment manager shall
have full discretion and authority to invest, reinvest or dispose of the
Trust assets in its Investment Manager Account, and the Trustee shall
follow the directions of an investment manager with respect to the
investment of Trust assets allocated to such Investment Manager's
Account; provided, however, that if the Trustee shall not have received
contrary instructions from an investment manager, the Trustee may invest
for short term purposes any cash in its custody in short term, cash
equivalent investments or in common or collective funds composed
thereof. To the extent necessary to comply with the directions of an
investment manager, the Trustee may enter into a subtrust agreement with
the investment manager. The Company may terminate the appointment of an
investment manager at any time, in which event the Company shall either
appoint a successor to such investment manager or direct the Trustee to
return the assets in the Investment Manager's Account to the
unsegregated portion of the Trust.
SECTION 6
DISPOSITION OF INCOME
During the term of this Trust, all income received by the Trust,
net of expenses and taxes, shall be accumulated and reinvested.
SECTION 7
ACCOUNTING BY TRUSTEE
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
required to be made, including such specific records as shall be agreed
upon in writing between the Company and the Trustee. Within 60 days
following the close of each calendar year, and within 60 days after the
removal or resignation of the Trustee, the Trustee shall deliver to the
Company a written account of its administration of the Trust during such
year or during the period from the close of the last preceding year to
the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including
a description of all securities and investments purchased and sold with
the cost or net proceeds of such purchases or sales (accrued interest
paid or receivable being shown separately), and showing all cash,
securities and other property held in the Trust at the end of such year
or as of the date of such removal or resignation, as the case may be.
SECTION 8
RESPONSIBILITY OF TRUSTEE
8.1 The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person
acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims;
provided, however, that the Trustee shall incur no liability to any
person for any action taken pursuant to a direction, request or approval
given by the Company or an investment manager which is contemplated by,
and in conformity with, the terms of the Plans or this Trust and is
given in writing by the Company or such investment manager. In the
event of a dispute between the Company and a party, the Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
8.2 If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee
against the Trustee's costs, expenses and liabilities (including,
without limitation, attorneys' fees and expenses) relating thereto and
to be primarily liable for such payments. If the Company does not pay
such costs, expenses and liabilities in a reasonably timely manner, the
Trustee may obtain payment from the Trust.
8.3 The Trustee may consult with legal counsel (who may also be
counsel for the Company generally) with respect to any of its duties or
obligations hereunder.
8.4 The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals to
assist it in performing any of its duties or obligations hereunder, and
may reasonably compensate them out of the Trust assets.
8.5 The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly provided
otherwise herein; provided, however, that if an insurance policy is held
as an asset of the Trust, the Trustee shall have no power to name a
beneficiary of the policy other than the Trust, to assign the policy (as
distinct from conversion of the policy to a different form) other than
to a successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
8.6 Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or to applicable law, the Trustee shall not have
any power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom, within the meaning of section
301.7700-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue Code.
SECTION 9
COMPENSATION AND EXPENSES OF TRUSTEE
The Company shall pay all administrative and the Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from the
Trust.
SECTION 10
RESIGNATION OR REMOVAL OF TRUSTEE
10.1 The Trustee may resign at any time by written notice to the
Company, which shall be effective 30 days after receipt of such notice
unless the Company and the Trustee agree otherwise.
10.2 Prior to a Change in Control, the Trustee may be removed by
the Company on 30 days notice or upon shorter notice accepted by the
Trustee. Following a Change in Control, the Trustee may not be removed
by the Company unless 65% of all employees or former employees of the
Company who are or may become entitled to the payment of benefits
pursuant to the Plans consent in writing to such removal.
10.3 Upon resignation or removal of the Trustee and appointment of
a successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within 30 days after
receipt of notice of resignation, removal or transfer, unless the
Company extends the time limit.
10.4 If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date
of resignation or removal under Section 10.1 or 10.2 of this section.
If no such appointment has been made, the Trustee may appoint a
successor Trustee or it may apply to a court of competent jurisdiction
for appointment of a successor or for instructions. All expenses of the
Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
11.1 If the Trustee resigns or is removed in accordance with
Section 10.1 or 10.2 hereof, the Company, or if a Change in Control
shall previously have occurred the Company and at least 65% of all
employees or former employees of the Company who are or may become
entitled to the payment of benefits pursuant to the Plans, may appoint
any third party, such as a bank trust department or other party that may
be granted corporate trustee powers under state law, as a successor to
replace the Trustee upon resignation or removal. The appointment shall
be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership
rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by the Company or the
successor Trustee to evidence the transfer.
11.2 The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 7 and 8 hereof. The successor Trustee shall not be
responsible for and the Company shall indemnify and defend the successor
Trustee from any claim or liability resulting from any action or
inaction of any prior Trustee or from any other past event or any
condition existing at the time it becomes a successor Trustee.
SECTION 12
AMENDMENT OR TERMINATION
12.1 This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the foregoing,
no such amendment shall conflict with the terms of the Plans or shall
make the Trust revocable after it has become irrevocable in accordance
with Section 1.2 hereof.
12.2 The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plans. Upon termination of the Trust any
assets remaining in the Trust shall be returned to the Company.
12.3 Notwithstanding the foregoing:
a. This Trust Agreement may not be amended by the Company
prior to a Change in Control without the written approval of any
Plan participant or beneficiary whose rights or protections under
a Plan or this Agreement may be reduced, impaired, or otherwise
adversely affected by the amendment.
b. This Trust Agreement may not be amended by the Company
following a Change in Control without the written approval of all
employees or former employees of the Company who are, or may
become, entitled to the payment of benefits pursuant to the Plans.
c. The Company may terminate this Trust prior to the date
specified in Section 12.2 upon the written approval of all
employees or former employees of the Company who are or may become
entitled to the payment of benefits pursuant to the Plans.
SECTION 13
MISCELLANEOUS
13.1 Any provision of this Trust Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
13.2 Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at
law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable
process.
13.3 This Trust Agreement shall be governed by and construed in
accordance with the laws of Iowa, except to the extent the same are
preempted by federal law.
13.4 This Trust Agreement shall be binding upon, and shall inure to
the benefit of, any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the
business or assets of the Company. The Company (and any successor to
the Company) may not otherwise assign its obligations under this Trust
Agreement without the prior written approval of all employees or former
employees of the Company who are, or may become, entitled to the payment
of benefits pursuant to the Plans; provided, however, that, subsequent
to the merger of IES Industries Inc. with WPL Holdings, Inc. and
Interstate Power Company in accordance with the Agreement and Plan of
Merger dated November 10, 1995, as amended, and prior to a Change in
Control, the Company (or its successor) may assign its obligations under
this agreement to any corporation, 100% of the stock of which is owned
(either directly or through one or more subsidiaries) by the entity
resulting from such merger.
13.5 For the purposes of this Trust Agreement, Change in Control
shall mean:
a. the purchase or other acquisition by any person, entity
or group of persons, within the meaning of section 13(d) or 14(d)
of the Securities Exchange Act of 1934, or any comparable successor
provisions, of ownership (within the meaning of Rule 13d-3
promulgated under that Act) of 20% or more of the combined voting
power of IES Industries Inc.'s outstanding voting securities
entitled to vote generally in the election of directors;
b. the approval by the stockholders of IES Industries Inc.
of a reorganization, merger or consolidation, in each case, with
respect to which persons who were stockholders of IES Industries
Inc. immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than 50% of
the combined voting power of the reorganized, merged or
consolidated entity's then outstanding securities entitled to vote
generally in the election of directors;
c. the approval by the stockholders of IES Industries Inc.
of a liquidation or dissolution of IES Industries Inc. or of the
sale of all or substantially all of the IES Industries Inc.'s
assets; or
d. the failure of individuals who were Directors of IES
Industries Inc. at the beginning of any two consecutive year period
(including, for this purpose, any new Director whose election or
nomination for election was approved by a vote of at least two-
thirds of the Directors then still in office who were Directors at
the beginning of such period) to constitute a majority of IES
Industries Inc.'s Board of Directors;
provided, however, that the merger of IES Industries Inc. with WPL
Holdings, Inc. and Interstate Power Company in accordance with the
Agreement and Plan of Merger dated November 10, 1995, as amended, shall
not constitute a Change in Control unless and until the resulting
corporation fails to make any payment due pursuant to a Plan at the time
such payment is due.
SECTION 14
EFFECTIVE DATE
The effective date of this Trust Agreement shall be August 1, 1997.
* * * * *
IN WITNESS WHEREOF, this instrument has been executed as of the day
and year last above written.
IES UTILITIES INC.
By:
Larry D. Root
President & Chief Operating Officer
NORWEST BANK IOWA, N.A.
By:
Charles W. Hippee
Employee Benefits Manager
APPENDIX A
PLANS
The following plans and agreements shall be funded through the
Trust:
Leo J. Crow
C.R.S. Anderson
Gordon F. Cooper
<TABLE>
EXHIBIT 12
IES UTILITIES INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<CAPTION>
Twelve Months
Year Ended December 31, Ended
1992 1993 1994 1995 1996 September 30, 1997
(in thousands, except ratio of earnings to fixed charges)
<S> <C> <C> <C> <C> <C> <C>
Net income $ 45,291 $ 67,970 $ 61,210 $ 59,278 $ 63,729 $ 69,736
Federal and state
income taxes 20,723 37,963 37,966 41,095 43,092 46,843
Net income before
income taxes 66,014 105,933 99,176 100,373 106,821 116,579
Interest on long-term debt 35,689 34,926 37,942 36,375 37,048 40,847
Other interest 3,939 5,243 3,630 8,085 6,666 7,966
Estimated interest
component of rents 4,567 3,729 3,970 4,637 4,091 4,338
Fixed charges as defined 44,195 43,898 45,542 49,097 47,805 53,151
Earnings as defined $ 110,209 $ 149,831 $ 144,718 $ 149,470 $ 154,626 $ 169,730
Ratio of earnings to fixed
charges (unaudited) 2.49 3.41 3.18 3.04 3.23 3.19
For the purposes of computation of these ratios (a) earnings have been
calculated by adding fixed charges and federal and state income taxes
to net income; (b) fixed charges consist of interest (including amortization
of debt expense, premium and discount) on long-term and other debt
and the estimated interest component of rents.
</TABLE>
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
EXHIBIT 27(a)
The schedule contains summary financial information extracted from the
Consolidated Balance Sheet at September 30, 1997 and the Consolidated Statement
of Income and the Consolidated Statement of Cash Flows for the nine months
ended September 30, 1997 and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<CIK> 0000789943
<NAME> IES INDUSTRIES INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,353,941
<OTHER-PROPERTY-AND-INVEST> 789,460
<TOTAL-CURRENT-ASSETS> 162,006
<TOTAL-DEFERRED-CHARGES> 16,966
<OTHER-ASSETS> 191,476
<TOTAL-ASSETS> 2,513,849
<COMMON> 419,167
<CAPITAL-SURPLUS-PAID-IN> 0
<RETAINED-EARNINGS> 442,419<F1>
<TOTAL-COMMON-STOCKHOLDERS-EQ> 861,586
0
18,320
<LONG-TERM-DEBT-NET> 854,468
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 493
0
<CAPITAL-LEASE-OBLIGATIONS> 24,674
<LEASES-CURRENT> 13,294
<OTHER-ITEMS-CAPITAL-AND-LIAB> 741,014
<TOT-CAPITALIZATION-AND-LIAB> 2,513,849
<GROSS-OPERATING-REVENUE> 686,642
<INCOME-TAX-EXPENSE> 34,944<F2>
<OTHER-OPERATING-EXPENSES> 553,610
<TOTAL-OPERATING-EXPENSES> 553,610<F2>
<OPERATING-INCOME-LOSS> 133,032
<OTHER-INCOME-NET> 1,786
<INCOME-BEFORE-INTEREST-EXPEN> 134,818
<TOTAL-INTEREST-EXPENSE> 46,777
<NET-INCOME> 52,411<F3>
686<F3>
<EARNINGS-AVAILABLE-FOR-COMM> 52,411
<COMMON-STOCK-DIVIDENDS> 47,786
<TOTAL-INTEREST-ON-BONDS> 46,711
<CASH-FLOW-OPERATIONS> 184,302
<EPS-PRIMARY> 1.73
<EPS-DILUTED> 0
<FN>
<F1>Includes $218,567 of unrealized security gains (net of taxes) and ($19) of cumulative foreign currency translation adjustments.
<F2>Income tax expense is not included in Operating Expense in the Consolidated
Statements of Income for IES Industries Inc. (Industries).
<F3> Since the preferred dividends are for a subsidiary of Industries, they are
considered a fixed charge on Industries' Consolidated Statement of Income.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
EXHIBIT 27(b)
The schedule contains summary financial information extracted from the
Consolidated Balance Sheet at September 30, 1997 and the Consolidated Statement
of Income and the Consolidated Statement of Cash Flows for the nine months
ended September 30, 1997 and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<CIK> 0000052485
<NAME> IES UTILITIES INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,353,941
<OTHER-PROPERTY-AND-INVEST> 85,040
<TOTAL-CURRENT-ASSETS> 126,900
<TOTAL-DEFERRED-CHARGES> 11,168
<OTHER-ASSETS> 191,476
<TOTAL-ASSETS> 1,768,525
<COMMON> 33,427
<CAPITAL-SURPLUS-PAID-IN> 279,042
<RETAINED-EARNINGS> 236,028
<TOTAL-COMMON-STOCKHOLDERS-EQ> 548,497
0
18,320
<LONG-TERM-DEBT-NET> 651,781
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 140
0
<CAPITAL-LEASE-OBLIGATIONS> 24,674
<LEASES-CURRENT> 13,294
<OTHER-ITEMS-CAPITAL-AND-LIAB> 511,819
<TOT-CAPITALIZATION-AND-LIAB> 1,768,525
<GROSS-OPERATING-REVENUE> 601,733
<INCOME-TAX-EXPENSE> 36,550<F1>
<OTHER-OPERATING-EXPENSES> 478,996
<TOTAL-OPERATING-EXPENSES> 478,996<F1>
<OPERATING-INCOME-LOSS> 122,737
<OTHER-INCOME-NET> (364)
<INCOME-BEFORE-INTEREST-EXPEN> 122,373
<TOTAL-INTEREST-EXPENSE> 38,446
<NET-INCOME> 47,377
686
<EARNINGS-AVAILABLE-FOR-COMM> 46,691
<COMMON-STOCK-DIVIDENDS> 42,000
<TOTAL-INTEREST-ON-BONDS> 46,711
<CASH-FLOW-OPERATIONS> 157,281
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1>Income tax expense is not included in Operating Expense in the Consolidated
Statements of Income for IES Utilities Inc.
</FN>
</TABLE>
