Exhibit 1.1
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EXECUTION
INTERSTATE POWER AND LIGHT COMPANY
(an Iowa corporation)
6.30% SENIOR DEBENTURES DUE 2034
PURCHASE AGREEMENT
Dated: August 2, 2004
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TABLE OF CONTENTS
Page
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SECTION 1. Representations and Warranties.........................2
(a) Representations and Warranties by the Company..........2
(i) Compliance with Registration Requirements.........3
(ii) Incorporated Documents............................3
(iii)Independent Accountants...........................4
(iv) Financial Statements..............................4
(v) No Material Adverse Change in Business............4
(vi) Good Standing of the Company......................5
(vii)No Significant Subsidiaries.......................5
(viii) Capitalization...............................5
(ix) Authorization of Agreement........................5
(x) Authorization of the Indenture....................5
(xi) Authorization of the Securities...................6
(xii)Description of the Securities and the Indenture...6
(xiii) Absence of Defaults and Conflicts............6
(xiv)Absence of Labor Dispute..........................7
(xv) Absence of Proceedings............................7
(xvi)Accuracy of Exhibits..............................7
(xvii) Absence of Further Requirements..............7
(xviii) Possession of Licenses and Permits...........8
(xix)Title to Property.................................8
(xx) Investment Company Act............................9
(xxi)Environmental Laws................................9
(b) Officer's Certificates.................................9
SECTION 2. Sale and Delivery to Underwriters; Closing.............9
(a) The Securities.........................................9
(b) Payment................................................9
(c) Denominations; Registration...........................10
SECTION 3. Covenants of the Company..............................10
(a) Compliance with Securities Regulations and Commission
Requests..............................................10
(b) Filing of Amendments..................................10
(c) Delivery of Registration Statements..................11
(d) Delivery of Prospectuses..............................11
(e) Continued Compliance with Securities Laws.............11
(f) Blue Sky Qualifications...............................12
(g) Rule 158..............................................12
(h) Use of Proceeds.......................................12
(i) Restriction on Sale of Securities.....................12
(j) Reporting Requirements................................12
(k) 1935 Act Filings......................................12
(l) Rating of Securities..................................13
(m) DTC...................................................13
(n) Compliance with Regulatory Approvals..................13
SECTION 4. Payment of Expenses...................................13
(a) Expenses..............................................13
(b) Termination of Agreement..............................13
SECTION 5. Conditions of Underwriters' Obligations...............14
(a) Effectiveness of Registration Statement...............14
(b) Opinion of Counsel for Company........................14
(c) Opinion of Counsel for Underwriters...................14
(d) Officers' Certificate.................................14
(e) Accountant's Comfort Letter...........................15
(f) Bring-down Comfort Letter.............................15
(g) Maintenance of Rating.................................15
(h) Additional Documents..................................15
(i) Termination of Agreement..............................16
SECTION 6. Indemnification.......................................16
(a) Indemnification of Underwriters.......................16
(b) Indemnification of Company, Directors and Officers....17
(c) Actions against Parties; Notification.................17
(d) Settlement without Consent if Failure to Reimburse....18
SECTION 7. Contribution..........................................19
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery 20
SECTION 9. Termination of Agreement..............................20
(a) Termination; General..................................20
(b) Liabilities...........................................21
SECTION 10. Default by One or More of the Underwriters..........21
SECTION 11. Notices.............................................21
SECTION 12. Parties.............................................21
SECTION 13. Governing Law and Time..............................22
SECTION 14. Effect of Headings..................................22
SECTION 15. Counterparts........................................22
SCHEDULES
Schedule A - List of Underwriters' Purchase Amounts
Schedule B - Pricing Information
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel
Exhibit B - Form of Opinion of Company's In-House Counsel
INTERSTATE POWER AND LIGHT COMPANY
(an Iowa corporation)
6.30% SENIOR DEBENTURES DUE 2034
PURCHASE AGREEMENT
August 2, 2004
Lehman Brothers Inc.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Interstate Power and Light Company, an Iowa corporation (the
"Company"), confirms its agreement with Lehman Brothers Inc. ("Lehman
Brothers") and Merrill Lynch & Co. and Merrill Lynch, Pierce, Fenner
& Smith Incorporated ("Merrill Lynch") (collectively, the
"Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective
principal amounts set forth on Schedule A of $25,000,000 aggregate
principal amount of the Company's 6.30% Senior Debentures due 2034
(the "Securities"). The Securities will be issued pursuant to an
indenture dated as of August 20, 2003 (the "Indenture") between the
Company and J.P. Morgan Trust Company, National Association, as
successor in interest to Bank One Trust Company, National
Association, as trustee (the "Trustee"). The Company has previously
issued $100,000,000 aggregate principal amount of its 6.30% Senior
Debentures due 2034 under the Indenture (the "May Notes"). The term
"Indenture," as used herein, includes the Officer's Certificate (as
defined in the Indenture) dated as of May 3, 2004 executed in
connection with the offering of the May Notes (the "May Officer's
Certificate"), establishing the form and terms of the May Notes
pursuant to Section 301 of the Indenture, and the Officer's
Certificate to be executed in connection with the offering of the
Securities, which will be of the same series as the May Notes. The
Securities are to be issued in book-entry form and will be issued to
Cede & Co. as nominee of The Depository Trust Company ("DTC")
pursuant to the blanket letter agreement, dated October 1, 2003 (the
"DTC Agreement"), between the Company and DTC.
The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as they deem advisable
after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(No. 333-114065), for the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act") and the offering
thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared
effective by the Commission, and the Company has filed such
post-effective amendments thereto (or such preliminary prospectus or
preliminary supplemental prospectus) as may be required under the
1933 Act and the 1933 Act Regulations, and each such post-effective
amendment has been declared effective by the Commission. Such
registration statement is referred to herein as the "Registration
Statement;" and the final prospectus and the final prospectus
supplement relating to the offering of the Securities, in the forms
first furnished to Merrill Lynch by the Company for use in
connection with the offering of the Securities, are collectively
referred to herein as the "Prospectus;" provided, however, that all
references to the "Registration Statement" and the "Prospectus"
shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), filed prior to the applicable date;
provided, further, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then all
references to "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. A "preliminary
prospectus" shall be deemed to refer to (i) any prospectus used
before the Registration Statement became effective and (ii) any
prospectus or prospectus supplement that omitted the information to
be included upon pricing in a form of prospectus or prospectus
supplement filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations and was used after such effectiveness and prior
to the initial delivery of the Prospectus to Merrill Lynch by the
Company. For purposes of this Agreement, all references to the
Registration Statement, Prospectus or preliminary prospectus or to
any amendment or supplement to any of the foregoing shall be deemed
to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which are "contained," "included" or
"stated" (or other references of like import) in the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to
mean and include all such financial statements and schedules and
other information which are incorporated by reference, as of such
applicable date, in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in
this Agreement to the Registration Agreement, amendments or
supplements to the Registration Statement, Prospectus or preliminary
prospectus shall be deemed to include the filing of any document
under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference, as of such applicable date,
in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company
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represents and warrants to each Underwriter as of the date
hereof and as of the Closing Time referred to in Section 2(b)
hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The
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Company meets the requirements for use of Form S-3 under the
1933 Act. Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any
Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time,
the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied
or will comply, as the case may be, in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations and the Trust Indenture Act of 1939, as amended
(the "1939 Act") and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and
did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading and the Indenture complied
and will comply in all material respects with the requirements
of the 1939 Act. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time,
included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any
Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or Prospectus (or any amendment thereto).
Each preliminary prospectus and the prospectus filed as
part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424
under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each preliminary
prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents.
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(1) The documents incorporated or deemed to be
incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are
filed with the Commission, complied or will comply, as the
case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations
of the Commission thereunder (the "1934 Act Regulations"),
as applicable, and, when read together with the other
information in the Prospectus, at the time the
Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time, did not or
will not, as the case may be, contain an untrue statement
of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading.
(2) The description of regulatory matters to which
the Company is subject, as disclosed in the Company's
filings with the Commission under the 1934 Act and the
1934 Act Regulations and as incorporated by reference into
the Registration Statement, is true and correct in all
material respects, except to the extent such description
in any specific filing has been superseded, updated or
supplemented by such description in a subsequent filing
under the 1934 Act or the 1934 Act Regulations made prior
to the date hereof or by such description in the
Prospectus.
(iii) Independent Accountants. The accountants who
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certified the financial statements and supporting schedules
included in the Registration Statement are independent public
accountants with respect to the Company and its subsidiaries
within the meaning of Regulation S-X under the 1933 Act.
(iv) Financial Statements. The financial statements
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included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly
in all material respects the financial position of the Company
and its consolidated subsidiaries at the dates indicated and
the statement of income, changes in common equity and cash
flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared
in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the
Registration Statement present fairly in all material respects
in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly in all
material respects the information shown therein and have been
compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
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respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, in the earnings or
business affairs of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary
course of business nor has there been any developments
involving a prospective material adverse change of the Company
and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries, and
(C) except for regular dividends on the common stock, par value
$2.50 per share, of the Company, the 8.375% Series B Cumulative
Preferred Stock, $0.01 par value per share, of the Company and
the 7.10% Series C Cumulative Preferred Stock, $0.01 par value
per share, of the Company in amounts per share that are
consistent with past practice, the terms of the 8.375% Series B
Cumulative Preferred Stock or the terms of the 7.10% Series C
Cumulative Preferred Stock, as the case may be, there has been
no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been
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duly organized and is validly existing as a corporation under
the laws of the State of Iowa and has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect.
(vii) No Significant Subsidiaries. The Company has no
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"significant subsidiary" as defined in Rule 1-02 of
Regulation S-X.
(viii) Capitalization. The authorized, issued and
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outstanding capital stock of the Company as of the date hereof
is set forth in the Prospectus in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to
existing reservations, agreements or employee benefit plans, or
pursuant to the exercise of convertible securities or options
outstanding on the date hereof or pursuant to any dividend
reinvestment plan). All of the issued and outstanding shares
of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and none
of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or other similar rights
of any securityholder of the Company. As of the date hereof,
except for 6,000,000 shares of the Company's 8.375% Series B
Cumulative Preferred Stock and 1,600,000 shares of the
Company's 7.10% Series C Cumulative Preferred Stock, all of the
issued and outstanding shares of the capital stock of the
Company are owned by Alliant Energy Corporation, a Wisconsin
corporation (the "Parent"), free and clear of all liens,
encumbrances, equities or claims. Immediately prior to the
Closing Time, except for 6,000,000 shares of the capital stock
of the Company's 8.375% Series B Cumulative Preferred Stock and
1,600,000 shares of the Company's 7.10% Series C Cumulative
Preferred Stock, all of the issued and outstanding shares of
capital stock of the Company will be owned directly by Parent,
free and clear of all liens, encumbrances, equities or claims.
The Parent is a "holding company" and the Company is a
"subsidiary" of a "holding company" as such terms are defined
under the Public Utility Holding Company Act of 1935, as
amended.
(ix) Authorization of Agreement. The Company has all
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requisite corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. This
Agreement has been duly authorized, executed and delivered by
the Company.
(x) Authorization of the Indenture. The Indenture has
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been duly authorized, executed and delivered by the Company and
duly qualified under the 1939 Act and constitutes a valid and
binding agreement of the Company enforceable against the
Company in accordance with its terms, except (A) the
enforcement thereof may be limited by bankruptcy, insolvency
(including without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and
(B) as enforcement thereof is subject to general principals of
equity (regardless if whether enforcement is considered in a
proceeding in equity or at law).
(xi) Authorization of the Securities. The Securities have
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been duly authorized and, at the Closing Time, will have been
duly executed by the Company and, when authenticated, issued
and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor
provided for in this Agreement, (i) will constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), (ii) will be in the form
contemplated by, and entitled to the benefits of, the
Indenture, (iii) will constitute a "reopening" of the series of
May Notes as contemplated in numbered paragraph 3 in the May
Officer's Certificate and will have the same terms as and will
constitute the same series of Securities (as such terms are
defined in the Indenture) as the May Notes for all purposes
under the Indenture, and (iv) will have the same CUSIP number
as, and will be fungible and will trade interchangeably with,
the May Notes.
(xii) Description of the Securities and the Indenture. The
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statements relating to the Securities and the Indenture
contained in the Prospectus conform, respectively, in all
material respects to the terms of the Securities and the
Indenture.
(xiii) Absence of Defaults and Conflicts. Neither the
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Company nor any of its subsidiaries is in violation of its
charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and
Instruments") except for such violations or defaults that would
not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and
the Securities, the consummation of the transactions
contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities and the use
of the proceeds from the sale of the Securities as described in
the Prospectus under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder and
under the Indenture and the Securities have been duly
authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach
of, or default or a Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, the Agreements and Instruments
except for such conflicts, breaches or defaults or liens,
charges or encumbrances that, singly or in the aggregate, would
not result in a Material Adverse Effect, nor will such action
result in any violation of the provisions of (x) the charter or
by-laws of the Company or any of its subsidiaries (except for
such conflicts, breaches, defaults, events or liens, charges or
encumbrances that would not result in a Material Adverse
Effect) or (y) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any
of their assets, properties or operations, except for any such
violations with respect to this clause (y) as would not,
individually or in the aggregate, result in a Material Adverse
Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(xiv) Absence of Labor Disputes. No labor dispute with the
--------------------------
employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is imminent, and the Company
is not aware of any existing or imminent labor disturbance by
the employees of any of its or any of its subsidiaries'
respective principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected
to result in a Material Adverse Effect.
(xv) Absence of Proceedings. Except as disclosed in the
-----------------------
Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect (A)
the properties or assets of the Company and its subsidiaries or
(B) the consummation of the transactions contemplated by this
Agreement or the performance by the Company of its obligations
hereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is
a party or of which any of their respective property or assets
is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xvi) Accuracy of Exhibits. There are no contracts or
----------------------
documents which are required to be described in the
Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required
except that this Agreement will be filed as an exhibit to a
Current Report on Form 8-K which shall be filed with the
Commission in accordance with the 1934 Act and the 1934 Act
Regulations prior to the filing of the Prospectus.
(xvii) Absence of Further Requirements. No filing
-----------------------------------
with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for
the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the
Securities hereunder, the consummation of the transactions
contemplated by this Agreement or for the due execution,
delivery and performance of the Indenture by the Company,
except (A) such as have been already obtained, (B) such as may
be required under the 1933 Act or the 1933 Act Regulations or
state securities laws, and (C) such as may be required by the
Public Utility Holding Company Act of 1935, as amended (the
"1935 Act"), solely with respect to filings required to be made
with the Commission subsequent to the Closing Time (such 1935
Act filings to be made by the Company).
(xviii) Possession of Licenses and Permits. The
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Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary
to conduct the business now operated by them except where the
failure to possess any such Governmental Licenses would not
have a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to
possess or comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except where the invalidity
of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect. Without limiting the
foregoing, the Company has received final orders of the
Illinois Commerce Commission, dated March 3, 2004, and the
Minnesota Public Utilities Commission, dated March 31, 2004,
and the approval, dated October 24, 2001, as supplemented on
June 25, 2004, of the Commission under the 1935 Act authorizing
the issuance of the Securities and such issuance is in
compliance with the terms and conditions of such orders and
approval. Such orders and approval are in full force and
effect and have not been amended supplemented or otherwise
modified. No proceeding to review, suspend, limit, modify,
restrict or revoke any such order or approval has been
instituted.
(xix) Title to Property. The Company and its subsidiaries
------------------
have good and marketable title to all real property owned by
the Company and its subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) are
described in the Prospectus or (B) do not, singly or in the
aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries; and all of
the leases and subleases material to the business of the
Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds
properties described in the Prospectus, are in full force and
effect, and neither the Company nor any of its subsidiaries has
any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any
of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company or any of its subsidiaries to the continued possession
of the leased or subleased premises under any such lease or
sublease, except where such would not have a Material Adverse
Effect.
(xx) Investment Company Act. The Company is not, and upon
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the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described
in the Prospectus will not be, an "investment company" or an
entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxi) Environmental Laws. Except as described in the
--------------------
Registration Statement and except as would not, singly or in
the aggregate, result in a Material Adverse Effect, (A) neither
the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries
have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to the
knowledge of the Company, threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body or
agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any officer
of the Company or any of its subsidiaries delivered to the
Underwriters or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) The Securities. On the basis of the representations,
warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from
the Company, at the price set forth in Schedule B, the
aggregate principal amount of Securities set forth in
Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices
of the Company at 4902 North Biltmore Lane, Madison, Wisconsin,
53718, or at such other place as shall be agreed upon by the
Underwriters and the Company, at 10:00 A.M. (Eastern time) on
the third business day after the date hereof (unless postponed
in accordance with the provisions of Section 10), or such other
time not later than ten business days after such date as shall
be agreed upon by the Underwriters and the Company (such time
and date of payment and delivery being herein called the
"Closing Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the
Company, against delivery to the Underwriters of certificates for
the Securities to be purchased by them. Either Lehman Brothers or
Merrill Lynch, individually and not as a representative of the
other, may (but shall not be obligated to) make payment of the
purchase price for all or a portion of the Securities to be
purchased by the other Underwriter whose funds have not been
received by the Closing Time, but such payment shall not relieve
such other Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities
shall be in such denominations (in integral multiples of
$1,000) as the Underwriters may request in writing at least two
full business days before the Closing Time and registered in
the name of Cede & Co., as nominee of DTC. The certificates
for the Securities will be made available for examination and
packaging by the Underwriters in New York, New York not later
than noon (Eastern time) on the last business day prior to the
Closing Time.
SECTION 3. Covenants of the Company. The Company covenants
---------------------------
with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will notify
the Underwriters immediately and confirm the notice in writing,
(i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission with
respect to the Registration Statement, (iii) of any request by
the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering
or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. The Company will give the Underwriters
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule
462(b)), any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time
it became effective or to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriters with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to
which the Underwriters or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Underwriters and counsel for the
Underwriters, without charge, copies (one of which shall be
manually signed) of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein)
and copies (one of which shall be manually signed) of all
consents and certificates of experts, and will also deliver to
the Underwriters, without charge, a conformed copy of the
Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and
each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered or will
deliver to each Underwriter, without charge, as many copies of
each preliminary prospectus and final prospectus as such
Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each Underwriter,
without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations and the 1939 Act and the
1939 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary,
in the reasonable opinion of counsel for the Underwriters or
for the Company, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will
not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of such counsel,
at any such time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the
Underwriters may designate and to maintain such qualifications
in effect so long as required for the sale of the Securities;
provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as
a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for such period.
(g) Rule 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a)
of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(i) Restriction on Sale of Securities. During a period of 15 days
from the date of the Prospectus, the Company will not, without
the prior written consent of the Underwriters, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any debt securities of the
Company or any securities convertible into or exercisable or
exchangeable for debt securities of the Company or file any
registration statement under the 1933 Act with respect to any
of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of
ownership of debt securities of the Company, whether any such
swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of debt securities of the Company or
such other securities, in cash or otherwise. The foregoing
sentence shall not apply to the Securities to be sold hereunder.
(j) Reporting Requirements. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed
with the Commission pursuant to the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
(k) 1935 Act Filings. The Company shall timely file all
notifications, forms and reports that may be required under the
1935 Act so as to permit the completion of the distribution and
sale of the Securities as contemplated in this Agreement and in
the Prospectus.
(l) Rating of Securities. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Services,
a division of McGraw Hill, Inc. ("S&P"), and Moody's Investors
Service Inc. ("Moody's") to provide their respective credit
ratings of the Securities.
(m) DTC. The Company will cooperate with the Underwriters and use
its best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC.
(n) Compliance with Regulatory Approvals. The Company will comply
with the terms and conditions of the final orders of the
Illinois Commerce Commission and the Minnesota Public Utilities
Commission and the approval of the Commission under the 1935
Act issued on March 3, 2004, March 31, 2004 and October 24,
2001 (as supplemented on June 25, 2004), respectively, as such
orders are amended from time to time until superseded, and
shall timely file all notifications, forms and reports that may
be required in connection therewith so as to permit the
completion of the distribution and sale of the Securities as
contemplated in this Agreement and in the Prospectus.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration
Statement (including financial statements and any schedules or
exhibits and any document incorporated therein by reference)
and of each amendment or supplement thereto, (ii) the
reproduction and delivery to the Underwriters of this
Agreement, the Indenture, any Agreement among Underwriters and
such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including
any transfer taxes and any stamp or other duties payable upon
the sale, issuance or delivery of the Securities to the
Underwriters and any charges of DTC in connection therewith,
(iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto
(provided that counsel fees in connection therewith do not
exceed $5,000), (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of
the Prospectus and any amendments or supplements thereto,
(vii) the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee in connection with
the Indenture and the Securities and (viii) any fees payable in
connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by
the Underwriters in accordance with the provisions of Section 5
or Section 9(a)(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the
Underwriters (provided that such out-of-pocket expenses, fees
and disbursements do not exceed $200,000).
SECTION 5. Conditions of Underwriters' Obligations. The
---------------------------------------------
obligations of the several Underwriters hereunder are subject to the
accuracy in all material respects of the representations and
warranties of the Company contained in Section 1 hereof or in
certificates of any officer of the Company or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the
performance in all material respects by the Company of its covenants
and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement,
has become effective and at the Closing Time no stop order
suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional
information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus
containing the information to be included upon pricing in a
form of prospectus filed with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations shall have been filed
with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated
as of the Closing Time, of Foley & Lardner LLP, counsel for the
Company, in form and substance reasonably satisfactory to
counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit A hereto. At
the Closing Time, the Underwriters shall have received the
favorable opinion regarding certain state and local regulatory
matters, dated as of the Closing Time, of Barbara J. Swan,
Executive Vice President and General Counsel of the Company, in
form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set
forth in Exhibit B hereto. In rendering such opinions, such
counsel may rely as to matters of fact (but not as to legal
conclusions), to the extent they deem proper, on certificates
of responsible officers of the Company and its subsidiaries and
of public officials.
(c) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated
as of the Closing Time, of Gibson, Dunn & Crutcher LLP, counsel
for the Underwriters, together with signed or reproduced copies
of such letter for each of the other Underwriters. In giving
such opinion such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Underwriters. In rendering such
opinion, such counsel may rely as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and its
subsidiaries and of public officials.
(d) Officers' Certificate. At the Closing Time, there shall not
have been, since the date hereof or since the respective dates
as of which information is given in the Prospectus, any
material adverse change in the condition, financial or
otherwise, in the earnings or business affairs of the Company
and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, nor has there
been any developments involving a prospective material adverse
change of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, and the Underwriters shall have received a
certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the
Company, dated as of the Closing Time, together with signed or
reproduced copies of such letter for each of the other
Underwriters, to the effect that (i) there has been no such
material adverse change or any developments involving a
prospective material adverse change, (ii) the representations
and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of
the Closing Time, (iii) the Company has complied in all
material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior
to the Closing Time, (iv) the Company is not in default in the
performance of any of the covenants to be performed by it under
the Indenture, and (v) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated
by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter dated such date, in form and
substance satisfactory to the Underwriters, together with
signed or reproduced copies of such letter for each of the
other Underwriters, containing statements and information of
the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and
certain financial information contained in the Registration
Statement and the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the
Underwriters shall have received from Deloitte & Touche LLP a
letter, dated as of the Closing Time, together with signed or
reproduced copies of such letter for each of the other
Underwriters, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a
date not more than three business days prior to the Closing
Time.
(g) Maintenance of Rating. At the Closing Time, the Securities
shall be rated at least "Baa1" by Moody's and "BBB" by S&P, and
the Company shall have delivered to the Underwriters a letter
dated the Closing Time, from each such rating agency, or other
evidence satisfactory to the Underwriters, confirming that the
Securities have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Company's other
securities by any "nationally recognized statistical rating
agency," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the 1933 Act, and no such securities
rating agency shall have publicly announced that it has under
surveillance or review, with possible negative implications,
its rating of the Securities or any of the Company's other
securities.
(h) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and
opinions (including but not limited to those referenced above)
as they may reasonably require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by
the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(i) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to
be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Company at any time at or prior
to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii)against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
- -------- -------
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter expressly
for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further that this indemnity
agreement shall not inure to the benefit of any Underwriter or any
person who controls such Underwriter on account of any such loss,
liability, claim, damage or expense arising out of any such defect
or alleged defect in any preliminary prospectus if a copy of the
Prospectus (exclusive of the documents incorporated by reference
therein) shall not have been given or sent by such Underwriter with
or prior to the written confirmation of the sale involved to the
extent that (i) the Prospectus would have cured such defect or
alleged defect and (ii) sufficient quantities of the Prospectus were
timely made available to such Underwriter.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to
the Company by such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent
it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the
Underwriters, and, in the case of parties indemnified pursuant
to Section 6(b) above, counsel to the indemnified parties shall
be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event
shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the
same general allegations or circumstances. In addition, the
indemnifying party shall be entitled to, to the extent that it
wishes, jointly with any other similarly notified indemnifying
party, to assume the defense of any claim or action brought
against an indemnified party with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Section 6 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided,
however, that the Underwriters shall have the right to employ
one counsel (in addition to local counsel) to represent them
and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to
liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company
under this Section 6 if, in the reasonable judgment of the
Underwriters, either (i) there is an actual or potential
conflict between the position of the Company on the one hand
and the Underwriters on the other hand or (ii) there may be
defenses available to it or them that are different from or
additional to those available to the Company (in any of which
events the Company shall not have the right to direct the
defense of such action on behalf of the Underwriters with
respect to such different defenses), in any of which events
such reasonable fees and expenses shall be borne by the
Company. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7
hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise
or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section
6(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
------------
in Section 6 hereof is for any reason unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein; then
each indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or
omissions, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net
proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company and
the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to the
aggregate initial public offering price of the Securities as set
forth on such cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the principal amount of
Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to
---------------------------------------------------
Survive Delivery. All representations, warranties and agreements
- -----------------
contained in this Agreement or in certificates of officers of the
Company or any of its subsidiaries submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive
delivery of and payment for the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Underwriters may terminate this
Agreement, by notice to the Company, at any time at or prior to
the Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of
which information is given in the Prospectus (exclusive of any
supplement thereto), any material adverse change in the
condition, financial or otherwise, in the earnings or business
affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, or any developments involving a prospective material
adverse change of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred after the
date hereof and prior to the Closing Time any material adverse
change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or
international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the
reasonable judgment of the Underwriters, impracticable to
market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the
Company or the Parent has been suspended or materially limited
by the Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock
Exchange or the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New
York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any
party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 6, 7 and 8 shall
survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If
--------------------------------------------
one of the Underwriters shall fail at the Closing Time to purchase
the Securities which it is obligated to purchase under this
Agreement (the "Defaulted Securities"), the non-defaulting
Underwriter shall have the right, within 24 hours thereafter, to
make arrangements for it-, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth;
if, however, the non-defaulting Underwriter shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of Securities
to be purchased on such date, the non-defaulting Underwriter
shall be obligated to purchase the full amount thereof, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Securities to
be purchased on such date, this Agreement shall terminate
without liability on the part of the non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Underwriters or the
Company shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
them at:
Lehman Brothers Inc. and Merrill Lynch & Co.
745 Seventh Avenue Merrill Lynch, Pierce, Fenner & Smith
New York, NY 10019 Incorporated
Attention: Debt Capital 4 World Financial Center
Markets, Power Group New York, NY 10080
Attention: Karl Fritz Schlopy
and notices to the Company shall be directed to it at 4902 North
Biltmore Lane, Madison, Wisconsin, 53718, attention of Thomas L.
Hanson.
SECTION 12. Parties. This Agreement shall each inure to the
--------
benefit of and be binding upon the Underwriters and the Company and
their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the
Company and their respective successors, and said controlling
persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND ALL
-----------------------
DISPUTES, CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR A BREACH HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one
------------
or more counterparts and, if executed in more than one counterpart,
the executed counterparts shall constitute a single instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the Underwriters and the Company
in accordance with its terms.
Very truly yours,
INTERSTATE POWER AND LIGHT COMPANY
By: /s/ Thomas L. Hanson
------------------------
Name:Thomas L. Hanson
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above
written:
LEHMAN BROTHERS INC.
By: /s/ Greg Hall
------------------------
Authorized Signatory
Greg Hall
Managing Director
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: Karl F. Schlopy
--------------------
Authorized Signatory
Karl F. Schlopy
Director
SCHEDULE A
Name of Underwriter Principal
-------------------
amount of
Securities
----------
Lehman Brothers Inc................................. $12,500,000
Merrill Lynch, Pierce, Fenner & Smith $12,500,000
Incorporated...................
Total............................................... $25,000,000
=============
SCHEDULE B
INTERSTATE POWER AND LIGHT COMPANY
(an Iowa corporation)
6.30% SENIOR DEBENTURES DUE 2034
1. The initial public offering price of the Securities shall
be 100.932% of the principal amount thereof, plus accrued interest
from May 6, 2004.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 100.057% of the principal amount thereof, plus
accrued interest from May 6, 2004.
3. The interest rate on the Securities shall be 6.30% per
annum.
4. The Company may redeem the Securities at any time at its
option, in whole or in part, at a redemption price equal to the sum
of the principal amount of the Securities to be redeemed, accrued
interest on that principal amount to the redemption date and the
make-whole amount, if any, with respect to the Securities to be
redeemed. This sum is referred to as the redemption price.
"Make-whole amount" means, in connection with the optional
redemption, the excess, if any, of:
o the aggregate present value as of the date of any optional
redemption of each dollar of principal being redeemed and
the amount of interest, exclusive of interest accrued to
the date of redemption, that would have been payable in
respect of such dollar of principal if such redemption had
not been made, determined by discounting, on a semi-annual
basis, such principal and interest at the reinvestment
rate, as determined on the third business day preceding
the date that notice of the redemption is given, from the
respective dates on which such principal and interest
would have been payable if such redemption had not been
made, over
o the aggregate principal amount of the Securities being
redeemed.
"Reinvestment rate" means 0.20% plus the arithmetic mean of the
yields under the headings "Week Ending" published in the most recent
statistical release under the caption "Treasury Constant Maturities"
for the maturity, rounded to the nearest month, corresponding to the
remaining life to maturity, as of the payment date of the principal
being redeemed. If no maturity exactly corresponds to such maturity,
yields for the two published maturities most closely corresponding
to such maturity will be calculated pursuant to the immediately
preceding sentence and the reinvestment rate will be interpolated or
extrapolated from such yields on a straight-line basis, rounding in
each of the relevant periods to the nearest month. For purposes of
calculating the reinvestment rate, the most recent statistical
release published prior to the date of determination of the
make-whole amount will be used.
"Statistical release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly
by the Federal Reserve System and which establishes yields on
actively traded United States government securities adjusted to
constant maturities or, if such statistical release is not published
at the time of any determination, then such other reasonably
comparable index which shall be designated by the Company.
EXHIBIT A
FORM OF OPINION OF FOLEY & LARDNER
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
The Company is validly existing as a corporation under the laws
of the State of Iowa.
The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under
the Purchase Agreement.
The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each domestic
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable; and, to the best of our knowledge, none of
the outstanding shares of capital stock of the Company were issued
in violation of preemptive or other similar rights of any
securityholder of the Company.
The Company has no "significant subsidiary" as defined in Rule
1-02 of Regulation S-X.
The Company has all requisite corporate power and authority to
execute and deliver the Purchase Agreement and to perform its
obligations thereunder. The Purchase Agreement has been duly
authorized, executed and delivered by the Company.
The Indenture has been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, when executed by the
Company and authenticated by the Trustee in the manner provided in
the Indenture (assuming due authorization, execution and delivery of
the Indenture by the Trustee), and issued and delivered against
payment of the purchase price therefor will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), will
be entitled to the benefits of the Indenture, will have the same
terms as and will constitute the same series of Securities (as such
terms are defined in the Indenture) as the May Notes for all
purposes under the Indenture and will have the same CUSIP number as
the May Notes.
The Indenture has been duly qualified under the 1939 Act.
The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by
Rule 424(b); and, to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are
pending or threatened by the Commission.
The Registration Statement, including any Rule 462(b)
Registration Statement, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement
to the Registration Statement and Prospectus, as of their respective
effective or issue dates (other than the financial statements,
statistical data and supporting schedules included therein or
omitted therefrom, as to which we need express no opinion) complied
as to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which we need express
no opinion), when they were filed with the Commission complied as to
form in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder.
The Securities and the Indenture conform as to legal matters in
all material respects to the descriptions thereof contained in the
Prospectus.
To the best of our knowledge, other than as set forth in the
Prospectus, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any
subsidiary thereof is a party, or to which the property of the
Company or any subsidiary thereof is subject, before or brought by
any court or governmental agency or body, which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
The information in the Prospectus under "Description of the
Senior Debentures" and in the Registration Statement under Item 15,
to the extent that it constitutes matters of law, summaries of legal
matters, the Company's charter or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
All descriptions in the Registration Statement of franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments to which the Company or any of its subsidiaries
are a party, to the extent that they describe legal matters, are
accurate in all material respects; and to the best of our knowledge,
there are no such documents required to be described or referred to
in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
To the best of our knowledge, the Company is not in violation
of its charter or by-laws and no default by the Company exists in
the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement
or instrument that is described or referred to in the Registration
Statement or Prospectus or filed or incorporated by reference as an
exhibit to the Registration Statement.
No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any domestic court
or governmental authority or agency (other than such as have already
been obtained and such as may be required under the applicable
securities laws of the various jurisdictions in which the Securities
will be offered or sold and the 1935 Act (solely with respect to
filings required to be made with the Commission subsequent to the
Closing Time), as to which we need express no opinion) is necessary
or required in connection with the due authorization, execution and
delivery of the Purchase Agreement or the Indenture by the Company
or for the offering, issuance, sale or delivery of the Securities.
The execution, delivery and performance of the Purchase
Agreement, the DTC Agreement, the Indenture and the Securities and
the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the sale
of the Securities as described in the Prospectus under the caption
"Use Of Proceeds") and compliance by the Company with its
obligations under the Purchase Agreement, the Indenture and the
Securities do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined in Section
1(a)(xii) of the Purchase Agreement) under or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to those agreements set forth on
Schedule A hereto (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws, or similar organizational
documents, of the Company, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any
U.S. government, government instrumentality or court, having
jurisdiction over the Company or any of its properties, assets or
operations.
The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined
in the 1940 Act.
The issuance of the Securities complies with all requirements
of the Securities and Exchange Commission's Release No. 35-27456,
70-9837, dated as of October 24, 2001, as supplemented by the
Commission's Release No. 35-27863, 70-9375, dated as of June 25,
2004.
Nothing has come to our attention that would lead us to believe
that the Registration Statement or any amendment or supplement
thereto (except for financial statements and schedules and other
financial or statistical data included or incorporated by reference
therein or omitted therefrom, as to which we need make no
statement), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement
thereto (except for financial statements and schedules and other
financial or statistical data included or incorporated by reference
therein or omitted therefrom, as to which we need make no
statement), at the time the Prospectus was issued, at the time any
such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering this opinion, we relied as to matters of fact (but not
as to legal conclusions), to the extent we deemed proper, on
certificates of responsible officers of the Company and public
officials. We have also relied on the legal opinion of Iowa counsel
for certain matters of Iowa corporate law and the Company's in-house
counsel for certain matters of state regulatory law.
SCHEDULE A TO THE FORM OF OPINION OF FOLEY & LARDNER
1. Indenture of Mortgage and Deed of Trust, dated as of
September 1, 1993, between Interstate Power and Light Company
("IP&L") (formerly Iowa Electric Light and Power Company ("IE"))
and the First National Bank of Chicago (J.P. Morgan Trust
Company, National Association, successor), as Trustee (the "1993
Indenture").
2. First through Fifth Supplemental Indentures to the 1993
Indenture.
3. Indenture of Mortgage and Deed of Trust, dated as of August 1,
1940, between IP&L (formerly IE) and the First National Bank of
Chicago (J.P. Morgan Trust Company, National Association,
successor), Trustee (the "1940 Indenture").
4. First through Sixty-Third Supplemental Indentures to the 1940
Indenture.
5. Indenture (for Senior Unsecured Debt Securities), dated as of
August 1, 1997, between IP&L (formerly IES Utilities Inc.) and
The First National Bank of Chicago (J.P. Morgan Trust Company,
National Association, successor), as Trustee.
6. Officers' Certificate, dated as of August 4, 1997, creating
IP&L's 6-5/8% Senior Debentures, Series A, due 2009.
7. Officers' Certificate, dated as of March 6, 2001, creating
IP&L's 6-3/4% Senior Debentures, Series B, due 2011.
8. Indenture (for Senior Unsecured Debt Securities), dated as of
August 20, 2003, between IP&L and Bank One Trust Company,
National Association (J.P. Morgan Trust Company, National
Association, successor), as Trustee.
9. Officer's Certificate, dated as of September 10, 2003, creating
IP&L's 5.875% Senior Debentures due 2018.
10. Officer's Certificate, dated as of October 20, 2003, creating
IP&L's 6.450% Senior Debentures due 2033.
11. Officer's Certificate, dated as of May 3, 2004, creating IP&L's
6.30% Senior Debentures due 2034.
12. Indenture, dated January 1, 1948, among IP&L (successor to
Interstate Power Company), JPMorgan Chase Bank (formerly The
Chase Manhattan Bank) and Carl E. Buckley and C. J. Heinzelmann
(James P. Freeman, successor), as Trustees, securing First
Mortgage Bonds (the "1948 Indenture").
13. First through Twenty-First Supplemental Indentures, dated
January 1, 1948 through December 31, 2001, to the 1948 Indenture.
14. Five Year Credit Agreement, dated as of July 26, 2004, among
IP&L, the Banks set forth therein and Wachovia Bank, National
Association as administrative agent and issuer of Letters of
Credit.
EXHIBIT B
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any state or local
court or governmental authority or agency (other than such as may be
required under the applicable securities laws of the various
jurisdictions in which the Securities will be offered or sold, as to
which I need express no opinion, and such as have already been
obtained) is necessary or required under the laws of the States of
Illinois, Iowa or Minnesota in connection with the due
authorization, execution and delivery of the Purchase Agreement by
the Company or for the offering, issuance, sale or delivery of the
Securities.
In rendering this opinion, I relied as to matters of fact (but
not as to legal conclusions), to the extent I deemed proper, on
certificates of responsible officers of the Company and public
officials.