Exhibit 4.3
TWENTY-FIRST SUPPLEMENTAL INDENTURE
This instrument was drafted by
and should be returned to:
Leslie P. Recht COUNTERPART NO. ___________
Defrees & Fiske
200 S. Michigan Avenue
Suite 1100
Chicago, Illinois 60604-2480
(312) 372-4000
INTERSTATE POWER AND LIGHT COMPANY
(successor-in-interest to Interstate Power Company)
TO
JPMORGAN CHASE BANK
(formerly The Chase Manhattan Bank)
(successor-in-interest to The Chase Manhattan Bank (National Association))
AND
JAMES P. FREEMAN
As Trustees
________________________
TWENTY-FIRST
SUPPLEMENTAL INDENTURE
Dated as of December 31, 2001
Providing for the merger of Interstate Power Company, a Delaware
corporation, with and into IES Utilities Inc., an Iowa corporation, with IES
Utilities Inc. being the surviving corporation of such merger under its name
changed thereby to Interstate Power and Light Company.
PARTIES
-------
TWENTY-FIRST SUPPLEMENTAL INDENTURE, dated as of December 31, 2001, made
by and between INTERSTATE POWER AND LIGHT COMPANY (formerly IES Utilities
Inc. ("IES")), a corporation organized and existing under the laws of the
State of Iowa, with its principal office at 200 First Street, S.E., in Cedar
Rapids, Linn County, Iowa 52401 (hereinafter called "IP&L"), party of the
first part, and JPMorgan Chase Bank, formerly The Chase Manhattan Bank, a New
York banking corporation duly organized and existing under the laws of the
United States of America (successor to the Original Corporate Trustee, The
Chase National Bank of the City of New York, a national banking association
organized under the laws of the United States of America, and to The Chase
Manhattan Bank, a banking corporation organized under the laws of the State
of New York, and to The Chase Manhattan Bank (National Association), a
national banking association organized under the laws of the United States of
America, its successors), whose post-office address is 450 West 33rd Street,
15th Floor, New York, New York 10001 (hereinafter sometimes called the
"Successor Corporate Trustee"), and James P. Freeman (Successor to the
Original Co-Trustee, Carl E. Buckley, and to Arthur F. Henning, C.F. Ruge,
J.A. Payne, and C.J. Heinzelmann, his duly appointed successor), whose
post-office address is 450 West 33rd Street, 15th Floor, New York, New York
10001 (hereinafter sometimes called the "Successor Co-Trustee"), as Trustees
under the Indenture dated as of January 1, 1948, hereinafter mentioned,
parties of the second part (the Successor Corporate Trustee, or the Original
Corporate Trustee, and the Successor Co-Trustee, his predecessors or the
Original Co-Trustee being hereinafter together sometimes called the
"Trustees");
WHEREAS, INTERSTATE POWER COMPANY, a corporation organized and existing
under the laws of the State of Delaware (hereinafter called the "Company"),
has heretofore executed and delivered to the Trustees, its Indenture
(hereinafter sometimes called the "Original Indenture"), dated as of January
1, 1948, and has entered into Supplemental Indentures supplemental to the
Original Indenture numbered First through Twentieth; and
WHEREAS, on the 31st day of March, 1955, The Chase National Bank of the
City of New York merged into the President and Directors of The Manhattan
Company (commonly known as "Bank of Manhattan Company") under the name of The
Chase Manhattan Bank as a corporation organized and existing under and by
virtue of the laws of the State of New York; and
WHEREAS, as of the date hereof the Company no longer has any utility
subsidiaries, all of the capital stock of Interstate Power Company of
Wisconsin, a former Wisconsin corporation, and of East Dubuque Electric
Company, a former Illinois corporation, having been released from the lien of
the Indenture, as supplemented, November 23, 1953 and September 23, 1955,
respectively; and
WHEREAS, in accordance with the terms of the Original Indenture, a Fifth
Supplemental Indenture, dated as of September 30, 1955, supplemental to the
Original Indenture, has heretofore been entered into between the Company and
the Trustees for the purpose of conveying to the Trustees certain additional
property of the Company located in the Counties of Henry, Jo Daviess and
Whiteside, in the State of Illinois; and
WHEREAS, in accordance with the terms of the Original Indenture,
effective on January 1, 1956, Carl E. Buckley, the Original Co-Trustee under
the Original Indenture, resigned as such Co-Trustee and Arthur F. Henning was
appointed, and accepted appointment, as his successor under said Original
Indenture, as supplemented; and
WHEREAS, in accordance with the terms of the Original Indenture,
effective on May 1, 1965, Arthur F. Henning, the first Successor Co-Trustee
under the Original Indenture, resigned as such Co-Trustee and C.F. Ruge was
appointed, and accepted appointment, as Successor Co-Trustee under said
Original Indenture, as supplemented; and
WHEREAS, The Chase Manhattan Bank on September 23, 1965, converted to a
national banking association under the name of The Chase Manhattan Bank
(National Association); and
WHEREAS, C.F. Ruge resigned as Co-Trustee under said Indenture, as
supplemented, and J.A. Payne was appointed Successor Co-Trustee, said
resignation and appointment having taken effect on December 31, 1980; and
WHEREAS, J.A. Payne resigned as Co-Trustee under said Indenture, as
supplemented, and C.J. Heinzelmann was appointed Successor Co-Trustee, said
resignation and appointment having taken effect on June 3, 1987; and
WHEREAS, on July 14, 1996, The Chase Manhattan Bank (National
Association) merged into Chemical Bank under the name The Chase Manhattan
Bank as a corporation organized and existing under and by virtue of the laws
of the State of New York and as such is now Successor Corporate Trustee under
the Original Indenture, as supplemented; and
WHEREAS, C.J. Heinzelmann resigned as Co-Trustee under said Indenture,
as supplemented, and James P. Freeman was appointed Successor Co-Trustee; and
WHEREAS, The Chase Manhattan Bank changed its name to JPMorgan Chase
Bank; and
WHEREAS, First Mortgage Bonds are presently outstanding under the
Original Indenture, as heretofore supplemented, as follows:
Series Principal Amount
------ ----------------
8% Series Due 2007.................................$25,000,000
8-5/8% Series Due 2021.............................$20,000,000
7-5/8% Series Due 2023.............................$94,000,000
and
WHEREAS, the Original Indenture, as supplemented, fully describes and
sets forth the property annexed thereby and said Original Indenture and the
various indentures supplemental thereto are of record in the offices of the
Recorders or Registers of deeds of each county where the Company owns
property in which this Twenty-first Supplemental Indenture is to be recorded;
and
WHEREAS, Section 12.01 of the Original Indenture, as supplemented,
provides, among other things, that any merger of the Company into any
corporation shall be upon and subject to the following provisions and
conditions:
(1) any such merger shall be on such terms as not to impair the lien
and security of the Indenture upon any part of the trust estate or
any of the rights and powers of the Trustees or of the holders of
the Bonds; and
(2) upon such merger, the due and punctual payment of the principal and
interest of all Bonds at the time outstanding, according to their
tenor, and the due and punctual performance and observance of all
the covenants and conditions of the Original Indenture, shall, by
supplemental indenture and as a condition of any such merger, be
expressly assumed by the successor corporation formed by or
resulting from any such merger; and
WHEREAS, Section 12.03 of the Original Indenture, as supplemented,
provides, among other things, that every successor corporation resulting from
a merger of the Company into another corporation, on the terms set forth in
Section 12.01 of the Original Indenture, as supplemented, shall upon
executing, acknowledging and delivering to the Trustees, and causing to be
recorded and filed, as required by Section 4.10 of the Original Indenture, as
supplemented, an indenture supplemental to the Original Indenture, as
provided in said Section 12.01, in form satisfactory to the Trustees, succeed
to and be substituted for the Company with the same effect as if it had been
named in the Original Indenture as the party of the first part; and
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as
of March 15, 2000, between IES and the Company, as amended on November 29,
2000 (the "Merger Agreement"), and simultaneously with the execution and
delivery of this Twenty-first Supplemental Indenture, the Company was merged
with and into IES, with IES being the surviving corporation under its name,
changed thereby, of Interstate Power and Light Company (the "Merger"); and
WHEREAS, neither the terms of the Merger Agreement nor the Merger in any
respect impairs or will impair the lien or security of the Indenture upon any
part of the trust estate or any of the rights or powers of the Trustees or of
the holders of the Bonds; and
WHEREAS, IP&L desires to enter into a supplemental indenture that
complies with Section 12.01 of the Original Indenture, as supplemented,
whereby IP&L, as the successor corporation resulting from the Merger,
assumes, effective upon the consummation of the Merger, the due and punctual
payment of the principal and interest of all Bonds at the time outstanding,
according to their tenor, and the due and punctual performance and observance
of all the covenants and conditions of the Original Indenture, as
supplemented, and whereby IP&L, effective upon the consummation of the
Merger, succeeds to and is substituted for the Company with the same effect
as if it had been named in the Original Indenture as the party of the first
part; and
WHEREAS, the Original Indenture authorized indentures supplemental to
the Original Indenture to be entered into for the purpose, among others, of
conveying, transferring and assigning to the Trustees, and subjecting to the
lien of the Original Indenture, additional properties thereafter acquired by
the Company; and
WHEREAS, IP&L, pursuant to appropriate resolutions of its Board of
Directors, has duly resolved and determined to make, execute and deliver to
the Trustees, as permitted by Section 12.01 of the Original Indenture, as
supplemented, a Twenty-first Supplemental Indenture in the form hereof for
the purpose herein provided; and
WHEREAS, all conditions and requirements necessary to authorize the
execution, delivery and recording of this Twenty-first Supplemental Indenture
and to make it a valid, binding and legal instrument have been met, performed
and fulfilled;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual covenants
herein contained and of the acceptance of this trust by the Trustees and of
the sum of One Dollar duly paid by the Trustees to IP&L at or before the time
of the execution of this Twenty-first Supplemental Indenture, and of other
valuable considerations, the receipt whereof is hereby acknowledged, and in
order to secure the payment of the principal of and interest (and premium, if
any) on all Bonds at any time issued and outstanding under the Original
Indenture and all indentures supplemental thereto (hereinafter sometimes
collectively called the "Indenture"), according to their tenor and effect,
IP&L has executed and delivered this Twenty-first Supplemental Indenture and
has granted, bargained, sold, warranted, aliened, remised, released,
conveyed, assigned, mortgaged, pledged, set over and confirmed and by these
presents does grant, bargain, sell, warrant, alien, remise, release, convey,
assign, mortgage, pledge, set over and confirm unto James P. Freeman and (to
the extent of its legal capacity to hold the same for the purposes hereof) to
JPMorgan Chase Bank, as Trustees, and to their successor or successors in
said trust, and to said Trustees and their successors and assigns forever,
all property, real, personal and mixed, tangible or intangible, including,
but not limited to, franchises (other than excepted property as defined in
the Original Indenture), of every kind, character and description and
wheresoever situated, owned by the Company as of immediately prior to the
effectiveness of the Merger, and all additions, extensions, improvements,
repairs and replacements to or about the plants or properties included in the
trust estate immediately prior to the effectiveness of the Merger,
appurtenant to the trust estate as so constituted (as distinguished from the
additions, extensions, improvements, repairs and replacements to or about the
plants or properties appurtenant to the plants or properties of IP&L and
additional plants or properties thereafter acquired by IP&L upon which the
Indenture need not constitute a lien); and all indebtedness and stock of the
Subsidiaries, if any, owned immediately prior to the effectiveness of the
Merger or thereafter acquired by IP&L which by the provisions of the
Indenture are required to be subject to the lien thereof, including (without
in any way limiting, by the specific reference to the same, the scope and
intent of the foregoing or of any general description contained in the
Original Indenture, as supplemented) any and all property, real, personal
and mixed, tangible or intangible, including but not limited to, franchises
(other than excepted property as defined in the Original Indenture) of every
kind, character and description and wheresoever located acquired by the
Company after May 15, 1993, the effective date of the Twentieth Supplemental
Indenture, to the time immediately prior to the effectiveness of the Merger,
and all additions, extensions, improvements, repairs and replacements thereto
or thereof.
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
tangible or intangible, of every kind, character and description of the
Company and IP&L granted, bargained, sold, warranted, aliened, remised,
released, conveyed, assigned, mortgaged, pledged, set over or confirmed by
IP&L as aforesaid, or intended so to be, unto the Trustees and their
successors and assigns forever.
SUBJECT, HOWEVER, to the exceptions, reservations, and matters
hereinbefore and in the Original Indenture and all indentures supplemental
thereto excepted and reserved in any manner whatsoever, including that no
merger of the Company into another corporation shall or is intended to
subject to the lien of the Indenture any or all of the property or franchises
of the successor corporation formed upon such merger other than as provided
in the Indenture, and subject to existing leases, to existing liens upon
rights-of-way for transmission or distribution line purposes, as in Article I
of the Original Indenture defined, and any extensions thereof, and subject to
existing easements for streets, alleys, highways, rights-of-way for railroads
or gas, electric, water or telephone lines, or other purposes over, upon and
across, and joint pole agreements with other utilities affecting any of the
property hereinbefore described, and subject also to the reservation of coal
and coal mining rights and timber rights wherever applicable, and all the
terms, conditions, agreements, covenants, exceptions and reservations
expressed or provided in the deeds or other instruments respectively under
and by virtue of which the Company acquired the properties hereinabove
described, and to undetermined liens and charges, if any, incidental to
construction, and other existing permitted liens as defined in Article I of
the Original Indenture, and subject also to such defects as IP&L may have
power by appropriate legal proceedings to cure, or which, in the opinion of
counsel for IP&L, are not of a serious nature under the facts and
circumstances of the case;
IN TRUST, NEVERTHELESS, upon the terms and trusts in the Original
Indenture and the indentures supplemental thereto, including this
Twenty-first Supplemental Indenture, set forth, for the equal and
proportionate benefit and security of all present and future holders of the
Bonds and coupons issued and to be issued thereunder, or any of them, without
preference of any of said Bonds and coupons of any particular series over the
Bonds and coupons of any other series, by reason of priority in the time of
the issue, sale or negotiation thereof, or by reason of the purpose of issue
or otherwise howsoever, except as otherwise provided in Section 3.01 and
Section 4.02 of the Original Indenture.
AND IP&L, FOR ITSELF AND ITS SUCCESSORS, DOES HEREBY COVENANT AND AGREE,
to and with the Trustees and their successors in said trust, for the benefit
of those who shall hold the Bonds and coupons, or any of them, issued and to
be issued under the Indenture, as follows:
PART I
------
ASSUMPTION BY IP&L
------------------
IP&L hereby assumes the due and punctual payment of the principal and
the interest of all Bonds outstanding under the Indenture, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed or observed by the
Company, and IP&L succeeds to and is substituted for the Company with the
same effect as if it had been named in the Original Indenture as the party of
the first part.
PART II
-------
CONCERNING THE TRUSTEES
-----------------------
The Trustees hereby accept the trusts hereby declared and provided, and
agree to perform the same upon the terms and conditions in the Original
Indenture, as supplemented by this Twenty-first Supplemental Indenture, and
in this Twenty-first Supplemental Indenture set forth and upon the following
terms and conditions:
The Trustees, or either or them, shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Twenty-first Supplemental Indenture or the due execution hereof by IP&L or
for or in respect of the recitals contained herein, all of which recitals are
made by IP&L solely.
PART III
--------
MISCELLANEOUS PROVISIONS
------------------------
This Twenty-first Supplemental Indenture shall form a part of the
Original Indenture as supplemented and all the terms and conditions herein
contained shall be deemed to be part of the Original Indenture, as fully and
with the same effect as if such terms and conditions had been set forth in
the Original Indenture as originally executed. Except as supplemented and
amended by the Supplemental Indentures numbered First through Twentieth and
this Twenty-first Supplemental Indenture, the Mortgage shall remain and
continue in full force and effect in accordance with the terms and conditions
thereof. Terms not otherwise defined herein which are defined in the
Mortgage as heretofore amended are used herein with their respective defined
meanings.
Subject to the provisions of Article XII and Article XIII of the
Original Indenture as supplemented, whenever in this Twenty-first
Supplemental Indenture any of the parties hereto is named or referred to,
this shall be deemed to include the successors or assigns of such party, and
all the covenants and agreements in this Twenty-first Supplemental Indenture
contained by or on behalf of IP&L or the Trustees shall bind and inure to the
benefit of the successors and assigns of such parties, whether so expressed
or not.
For all purposes hereof, all terms contained in this Twenty-first
Supplemental Indenture shall, except as the context may otherwise require or
as provided herein, have the meanings given to such terms in Article I of the
Original Indenture. The terms "Corporate Trustee" and "Co-Trustee", as used
in the Indenture, shall include the Successor Corporate Trustee and the
Successor Co-Trustee, respectively.
This Twenty-first Supplemental Indenture may be simultaneously executed
in any number of counterparts, each of which when so executed shall be deemed
to be an original; but such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, said Interstate Power and Light Company has caused
this Indenture to be executed on its behalf by its President or one of its
Vice Presidents and its corporate seal to be hereto affixed and said seal and
this Indenture to be attested by its Secretary or one of its Assistant
Secretaries and hereby acknowledges receipt of a full, true and complete copy
of this Twenty-first Supplemental Indenture, and JPMorgan Chase Bank, one of
the parties hereto of the second part, as Successor Corporate Trustee as
aforesaid, in evidence of its acceptance of the trust hereby created, has
caused this Indenture to be executed on its behalf by one of its Vice
Presidents, and its corporate seal to be hereto affixed and said seal and
this Indenture to be attested by one of its Assistant Secretaries, and James
P. Freeman, as Successor Co-Trustee, as aforesaid, one of the parties hereto
of the second part, for all like purposes has hereunto set his hand and
affixed his seal; all as of the 31st day of December, Two thousand one.
INTERSTATE POWER AND LIGHT COMPANY
By:
---------------------------------------------
Name: Kim K. Zuhlke
Title: Vice President - Engineering, Sales and
Marketing
(CORPORATE SEAL)
ATTEST:
__________________________
Name: Edward M. Gleason
Vice President - Treasurer
and Corporate Secretary
Signed, sealed and delivered by
INTERSTATE POWER AND
LIGHT COMPANY in the presence of:
______________________________
Name: Lorraine L. Matthews
_______________________________
Name: Debra L. Mohr
As Witnesses.
JPMORGAN CHASE BANK
As Successor Corporate Trustee as aforesaid
By:
-------------------------------------------
Name:
-----------------------------------------
Title: Vice President
(CORPORATE SEAL)
ATTEST:
Name:
----------------------------
Title: [Assistant] Secretary
Signed, sealed and delivered by
JPMORGAN CHASE BANK
in the presence of:
Name:
----------------------------
Name:
----------------------------
As Witnesses.
-------------------------------------
James P. Freeman
Signed, sealed and delivered
by JAMES P. FREEMAN in the
presence of:
Name:
----------------------------
Name:
----------------------------
As Witnesses.
STATE OF WISCONSIN }
} SS.
COUNTY OF DANE }
On the 31st day of December, 2001, before me, a Notary Public in and for
said County and State, personally appeared Kim K. Zuhlke, Vice President -
Engineering, Sales & Marketing of Interstate Power and Light Company (f/k/a
IES Utilities Inc.), one of the corporations described in and which executed
the foregoing instrument, to me personally known, who, being by me duly
sworn, did say that he is Vice President - Engineering, Sales & Marketing of
said corporation; that the seal affixed to the said instrument is the
corporate seal of said corporation; and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors
and the said Kim K. Zuhlke acknowledged the execution of said instrument to
be the voluntary act and deed of said corporation by it voluntarily executed.
------------------------------------------------
Name: F. J. Buri, Notary Public
My Commission is permanent:
[NOTARIAL SEAL]
STATE OF WISCONSIN }
} SS.
COUNTY OF DANE }
On the 31st day of December, 2001, before me, a Notary Public in and for
said County and State, personally appeared Edward M. Gleason, Vice President
- - Treasurer and Corporate Secretary of Interstate Power and Light Company
(f/k/a IES Utilities Inc.), one of the corporations described in and which
executed the foregoing instrument, to me personally known, who, being by me
duly sworn, did say that he is Vice President - Treasurer and Corporate
Secretary of said corporation; that the seal affixed to the said instrument
is the corporate seal of said corporation; and that said instrument was
signed and sealed on behalf of said corporation by authority of its Board of
Directors and the said Edward M. Gleason acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation by it
voluntarily executed.
------------------------------------------------
Name: F. J. Buri, Notary Public
My Commission is permanent:
[NOTARIAL SEAL]
STATE OF NEW YORK }
} SS.
COUNTY OF NEW YORK }
On the _________ day of _____________________, 2001, before me, a Notary
Public in and for said County and State, personally appeared
__________________________________, _________________________________ of
JPMorgan Chase Bank, one of the corporations described in and which executed
the foregoing instrument, to me personally known, who being by me duly sworn,
did say that [s]he is an
-----------------------------------------
of said corporation; and that said instrument was signed and sealed on behalf
of said corporation by authority of its Board of Directors and said Trust
Officer acknowledged the execution of said instrument to be the voluntary act
and deed of said corporation by it voluntarily executed.
-----------------------------------
Name: Notary Public
-----------------
My Commission Expires:
[NOTARIAL SEAL]
STATE OF NEW YORK }
} SS.
COUNTY OF NEW YORK }
On the _________ day of _____________________, 2001, before me, a Notary
Public in and for said County and State, personally appeared
__________________________________, _________________________________ of
JPMorgan Chase Bank, one of the corporations described in and which executed
the foregoing instrument, to me personally known, who being by me duly sworn,
did say that [s]he is an
-----------------------------------------
of said corporation; and that said instrument was signed and sealed on behalf
of said corporation by authority of its Board of Directors and said Trust
Officer acknowledged the execution of said instrument to be the voluntary act
and deed of said corporation by it voluntarily executed.
-----------------------------------
Name: Notary Public
-----------------
My Commission Expires:
[NOTARIAL SEAL]
STATE OF NEW YORK }
} SS.
COUNTY OF NEW YORK }
On the day of , 2001, before me, a Notary
---------- ------------------
Public in and for said County and State, personally appeared James P.
Freeman, one of the Trustees mentioned in the foregoing instrument,
personally known to me to be the person named in and who executed the
foregoing instrument, and acknowledged to me that he, as such Trustee,
executed and delivered the said instrument as his free and voluntary act and
deed, for the uses and purposes therein set forth.
------------------------------------
Name: , Notary Public
----------------
My Commission Expires:
[NOTARIAL SEAL]