EXHIBIT 10(b)
GUARANTY
(IES Utilities Trust No. 1994-A)
from
IES UTILITIES INC.
Dated as of June 29, 1994
GUARANTY
THIS GUARANTY (IES Utilities Trust No. 1994-A), dated as of
June 29, 1994, is made by IES Utilities Inc., an Iowa corporation
(in such capacity, the "Guarantor").
W I T N E S S E T H:
WHEREAS, the Guarantor (as Lessee), First Security Bank of
Utah, National Association, as Owner Trustee, First Chicago
Leasing Corporation and CIBC Leasing Inc., as Owner Participants,
the Lenders named therein, as Lenders, and The First National
Bank of Chicago, as Arranger and Administrative Agent, have
entered into that certain Participation Agreement, dated as of
June 29, 1994 (as it may be modified, amended or restated from
time to time as and to the extent permitted thereby, the
"Participation Agreement"; and, unless otherwise defined herein
or the context hereof otherwise requires, terms which are defined
or defined by reference in the Participation Agreement (including
Appendix A thereto) shall have the same meanings when used herein
as such terms have therein); and
WHEREAS, it is a condition precedent to the Participants'
consummating the transactions to be consummated on the Closing
Date that the Guarantor execute and deliver this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor that
the Overall Transaction and the Closing Date occur; and
WHEREAS, this Guaranty, and the execution, delivery and
performance hereof, have been duly authorized by all necessary
corporate action of the Guarantor; and
WHEREAS, this Guaranty is offered by the Guarantor as an
inducement to the Participants to consummate the transactions
contemplated in the Participation Agreement, which transactions,
if consummated, will be of benefit to the Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is
hereby acknowledged by the Guarantor, the Guarantor hereby agrees
as follows:
The Guarantor hereby unconditionally guarantees the full and
prompt payment when due, whether by acceleration or otherwise,
and at all times thereafter, and the full and prompt performance,
of all of the Liabilities (as hereinafter defined), including
interest and yield on any such Liabilities whether accruing
before or after any bankruptcy or insolvency case or proceeding
involving the Guarantor or any other Person and, if interest or
yield on any portion of such obligations ceases to accrue by
operation of law by reason of the commencement of such case or
proceeding, including such interest and yield as would have
accrued on any such portion of such obligations if such case or
proceeding had not commenced, and further agrees to pay all
expenses (including attorneys' fees and legal expenses) paid or
incurred by each of the Agent, the Owner Trustee and each of the
Participants in endeavoring to collect the Liabilities, or any
part thereof, and in enforcing this Guaranty. The term
"Liabilities", as used herein, shall mean all of the following,
in each case howsoever created, arising or evidenced, whether
direct or indirect, joint or several, absolute or contingent, or
now or hereafter existing, or due or to become due: all
principal of the Notes, interest accrued thereon, the Owner
Participant Amounts, yield accrued on the Certificates and all
additional amounts and other sums at any time due and owing, and
required to be paid, to the Agent, the Owner Trustee and/or the
Participants under the terms of the Participation Agreement, the
Loan Agreement, the Assignment, the Mortgage or any other
Operative Document (including, without limitation, Section
2.15(b) of the Loan Agreement or any Make-Whole Amount);
provided, however, that the Guarantor will not be obligated to
pay and perform under this Guaranty that portion of Liabilities
constituting the principal of Series B Notes, interest accrued
thereon and amounts payable pursuant to Section 2.15(b) of the
Loan Agreement relating to the Series B Notes or the Owner
Participant Amounts, yield accrued on the Certificates and Make-
Whole Amount unless a Lease Event of Default has occurred and is
continuing.
By way of extension but not in limitation of any of its
other obligations hereunder, the Guarantor stipulates and agrees
that in the event any foreclosure proceedings are commenced and
result in the entering of a foreclosure judgment, any such
foreclosure judgment, to the extent related to the Liabilities,
shall be treated as part of the Liabilities, and the Guarantor
unconditionally guarantees the full and prompt payment of such
judgment.
The Guarantor agrees that, in the event of the dissolution,
bankruptcy or insolvency of either of the Borrower or the
Guarantor, or both, or the inability or failure of either the
Borrower or the Guarantor, or both, to pay debts as they become
due, or an assignment by the Borrower or the Guarantor, or both,
for the benefit of creditors, or the commencement of any case or
proceeding in respect of either of the Borrower or the Guarantor,
or both, under any bankruptcy, insolvency or similar laws, and if
such event shall occur at a time when any of the Liabilities may
not then be due and payable, the Guarantor will pay to the Agent
forthwith the full amount which would be payable hereunder by the
Guarantor if all Liabilities were then due and payable.
To secure all obligations of the Guarantor hereunder, the
Agent and each Participant shall have a lien upon and security
interest in (and may, without demand or notice of any kind, at
any time and from time to time when any amount shall be due and
payable by the Guarantor hereunder, appropriate and apply toward
the payment of such amount, in such order of application as the
Agent may elect in accordance with the Loan Agreement and the
Trust Agreement) any and all balances, credits, deposits,
accounts or moneys of or in the Guarantor's name now or
hereafter, for any reason or purpose whatsoever, in the
possession or control of, or in transit to, the Agent or any
Participant or any agent or bailee for the Agent or any
Participant.
This Guaranty shall in all respects be a continuing,
absolute and unconditional guaranty of payment and performance
(and not of collection), and shall remain in full force and
effect (notwithstanding, without limitation, the dissolution of
the Guarantor).
The Guarantor further agrees that, if at any time all or any
part of any payment theretofore applied to any of the Liabilities
is or must be rescinded or returned for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or
reorganization of the Borrower or the Guarantor), such
Liabilities shall, for the purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, be
deemed to have continued in existence, notwithstanding such
application, and this Guaranty shall continue to be effective or
be reinstated, as the case may be, as to such Liabilities, all as
though such application had not been made.
The Agent on behalf of itself, the Owner Trustee and the
Participants, and the Owner Trustee and the Participants, may,
from time to time at their discretion and without notice to the
Guarantor, take any or all of the following actions: (a) retain
or obtain (i) a security interest in the Lessee's interest in the
Lease and (ii) a lien or a security interest hereafter granted by
any Person upon or in any property, in each case to secure any of
the Liabilities or any obligation hereunder; (b) retain or obtain
the primary or secondary obligation of any obligor or obligors,
in addition to the Guarantor, with respect to any of the
Liabilities; (c) extend or renew for one or more periods
(regardless of whether longer than the original period), alter or
exchange any of the Liabilities, or release or compromise any
obligation of the Guarantor hereunder or any obligation of any
nature of any other obligor (including, without limitation, the
Borrower) with respect to any of the Liabilities; (d) release or
fail to perfect its lien upon or security interest in, or impair,
surrender, release or permit any substitution or exchange for,
all or any part of any property securing any of the Liabilities
or any obligation hereunder, or extend or renew for one or more
periods (regardless of whether longer than the original period)
or release, compromise, alter or exchange any obligations of any
nature of any obligor with respect to any such property; and (e)
resort to the Guarantor for payment of any of the Liabilities,
regardless of whether the Agent or any other Person shall have
resorted to any property securing any of the Liabilities or any
obligation hereunder or shall have proceeded against any other
obligor primarily or secondarily obligated with respect to any of
the Liabilities (all of the actions referred to in this clause
(e) being hereby expressly waived by the Guarantor).
Any amounts received by the Agent, the Owner Trustee or any
Participant from whatever source on account of the Liabilities
shall be applied by it toward the payment of such of the
Liabilities, and in such order of application, as is set forth in
the Loan Agreement and the Trust Agreement. The Guarantor hereby
agrees that no payment made by or for the account of the
Guarantor pursuant to this Guaranty shall entitle the Guarantor
by subrogation, indemnification, exoneration, contribution,
reimbursement or otherwise to any payment by the Borrower or from
or out of any property of the Borrower and the Guarantor hereby
expressly waives, to the fullest extent possible, and shall not
exercise, any right or remedy against the Borrower or any
property of the Borrower by reason of any performance by the
Guarantor of this Guaranty, unless (1) no Lease Event of Default
shall have occurred and be continuing, (2) the Liabilities have
been paid and performed in full, and (3) at the time of such
payment by the Guarantor, the Guarantor is not an "insider" of
the Borrower within the meaning of Section 101(31) of the
Bankruptcy Reform Act of 1978, as now or hereafter in effect, or
any successor provision. If, and to the extent that, any such
rights or remedies against the Borrower may not be waived under
Applicable Laws and Regulations, the Guarantor (if, at the time
of such payment by the Guarantor, it is an "insider" within the
meaning of said Section 101(31), or any success or provision)
shall be deemed to have contributed any such rights to the
Borrower effective immediately upon the arising of such rights or
remedies, which contribution shall give rise to obligations of
the Borrower to the Guarantor which are subordinate in all
respects to the Owner Participant Amounts, yield accrued on the
Certificates and all other portions of the Liabilities payable to
or for the benefit of the Owner Participants, and the rights of
the Owner Participants with respect thereto.
The Guarantor hereby expressly waives: (a) notice of the
acceptance of this Guaranty; (b) notice of the existence or
creation or non-payment of all or any of the Liabilities; (c)
presentment, demand, notice of dishonor, protest, and all other
notices whatsoever; and (d) all diligence in collection or
protection of or realization upon the Liabilities or any thereof,
any obligation hereunder, or any security for or guaranty of any
of the foregoing.
Each of the Agent, the Owner Trustee and each Participant
may, from time to time, whether before or after any
discontinuance of this Guaranty, at its sole discretion and
without notice to the Guarantor, assign or transfer any or all of
its portion of the Liabilities or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and
remain Liabilities for the purposes of this Guaranty, and each
and every immediate and successive assignee or transferee of any
of the Liabilities or of any interest therein shall, to the
extent of such assignee's or transferee's interest in the
Liabilities, be entitled to the benefits of this Guaranty to the
same extent as if such assignee or transferee were the Agent, the
Owner Trustee or such Participant, as appropriate.
No delay in the exercise of any right or remedy shall
operate as a waiver thereof, and no single or partial exercise of
any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy; nor shall
any modification or waiver of any of the provisions of this
Guaranty be binding upon the Agent, the Owner Trustee or any
Participant except as expressly set forth in a writing duly
signed and delivered on its behalf. No action permitted
hereunder shall in any way affect or impair the Agent's, the
Owner Trustee's or any Participant's rights or the Guarantor's
obligations under this Guaranty. For the purposes of this
Guaranty, Liabilities shall include all of the obligations
described in the definition thereof, notwithstanding any right or
power of the Borrower or anyone else to assert any claim or
defense as to the invalidity or unenforceability of any such
obligation, and no such claim or defense shall affect or impair
the obligations of the Guarantor hereunder. The Guarantor's
obligations under this Guaranty shall be absolute and
unconditional irrespective of any circumstance whatsoever which
might constitute a legal or equitable discharge or defense of the
Guarantor. The Guarantor hereby acknowledges that there are no
conditions to the effectiveness of this Guaranty.
This Guaranty shall be binding upon the Guarantor and upon
the Guarantor's successors and assigns; and all references herein
to the Guarantor shall be deemed to include any successor or
successors, whether immediate or remote, to such Person.
Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under
Applicable Laws and Regulations, but if any provision of this
Guaranty shall be prohibited by or invalid thereunder, such
provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
The Guarantor: (a) submits for itself and its property in
any legal action or proceeding relating to this Guaranty, or for
recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the Courts of the
State of Illinois, the courts of the United States of America for
the Northern District of Illinois, and appellate courts from any
thereof; (b) consents that any such action or proceedings may be
brought to such courts, and waives any objection that it may now
or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the
same; (c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form
of mail), postage prepaid, to it at its address set forth below
or at such other address of which the other parties to the
Participation Agreement shall have been notified pursuant to
Section 8.3 of the Participation Agreement; and (d) agrees that
nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the
right of the Agent, the Owner Trustee or the Participants to sue
in any other jurisdiction.
All notices, demands, declarations, consents, directions,
approvals, instructions, requests and other communications
required or permitted by this Guaranty shall be in writing and
shall be deemed to have been duly given when addressed to the
appropriate Person and delivered in the manner specified in
Section 8.3 of the Participation Agreement. The initial address
for notices to the Guarantor is set forth below.
THIS GUARANTY HAS BEEN DELIVERED AT CHICAGO, ILLINOIS, AND
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES. THE GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY
RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY, AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty
to be executed and delivered as of the date first above written.
IMPORTANT: READ BEFORE SIGNING: THE TERMS OF THIS
AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE
TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT
MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF
THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IES UTILITIES INC.
By:______________________________
Name Printed:_________________
Title:________________________
Address:
200 First Street, S.E.
Cedar Rapids, Iowa 52401
Attention: Caroline Giddings