Exhibit 4(a)
CONFORMED COPY
Prepared by: IES Utilities Inc., Darin Smith, 200 First
St. SE, Cedar Rapids, IA 52401, (319)
398-4505
______________________________________________________________________________
______________________________________________________________________________
IES UTILITIES INC.
(formerly known as Iowa Electric Light and Power Company)
TO
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
______________
Fifth Supplemental Indenture
Dated as of April 1, 1997
______________
TO
INDENTURE OF MORTGAGE and DEED OF TRUST
Dated as of September 1, 1993
______________________________________________________________________________
FIFTH SUPPLEMENTAL INDENTURE, dated as of April 1, 1997
(the "Fifth Supplemental Indenture"), made by and between IES
UTILITIES INC. (formerly known as Iowa Electric Light and Power
Company), a corporation organized and existing under the laws of
the State of Iowa (the "Company"), and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association organized and existing under
the laws of the United States of America (the "Trustee"), as Trustee
under the Indenture of Mortgage and Deed of Trust dated as of
September 1, 1993, hereinafter mentioned.
WHEREAS, the Company has heretofore executed and delivered
its Indenture of Mortgage and Deed of Trust dated as of September 1,
1993, to the Trustee, for the security of the securities of the
Company to be issued there under (the "Collateral Trust Bonds" or
"Bonds"), and the said Indenture has been supplemented by four
supplemental indentures, dated as of October 1, 1993, November 1,
1993, March 1, 1995 and September 1, 1996, which Indenture as so
supplemented and to be hereby supplemented is hereinafter referred to
as the "Indenture"; and
WHEREAS, the Company desires to create a series of
Collateral Trust Bonds to be issued under the Indenture, to be known
as Collateral Trust Bonds, 6 7/8% Series Due 2007 (the "Collateral
Trust Bonds of the 6 7/8% Series"); and
WHEREAS, the Company, in the exercise of the powers and
authority conferred upon and reserved to it under the provisions of
the Indenture, has duly resolved and determined to make, execute and
deliver to the Trustee a Fifth Supplemental Indenture in the form
hereof for the purposes herein provided; and
WHEREAS, pursuant to Section 1401 of the Indenture,
the Company may from time to time execute one or more
supplemental indentures in order to better assure, convey and
confirm unto the Trustee any property subject to the Lien of the
Indenture; and
WHEREAS, the Company desires to so assure, convey and
confirm property described in Exhibit A to this Supplemental
Indenture; and
WHEREAS, all conditions and requirements necessary to
make this Fifth Supplemental Indenture a valid, binding and legal
instrument have been done, performed and fulfilled, and the execution
and delivery hereof have been in all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
THAT IES UTILITIES INC., in consideration of the purchase
and ownership from time to time of the Bonds created in the
Fifth upplemental Indenture and the service by the Trustee,
and its successors, under the Indenture and of One Dollar to it duly
paid by the Trustee at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, hereby
covenants and agrees to and with the Trustee and its successors
in the trust under the Indenture, for the benefit of those who
shall hold the Bonds as follows:
ARTICLE I
DESCRIPTION OF COLLATERAL TRUST BONDS OF THE 6 7/8% SERIES
SECTION 1. The Company hereby creates a new series of
Bonds to be known as "Collateral Trust Bonds of the 6 7/8%
Series." The Collateral Trust Bonds of the 6 7/8% Series shall
be executed, authenticated and delivered in accordance with the
provisions of, and shall in all respects be subject to, all of the
terms, conditions andcovenants of the Indenture, as supplemented and
modified.
The commencement of the first interest period shall be
April 30, 1997. The Collateral Trust Bonds of the 6 7/8% Series
shall mature May 1, 2007, and shall bear interest at the rate of 6
7/8% per annum, payable semi-annually on the 1st day of May and the
1st day of November in each year, commencing on November 1, 1997.
The person in whose name any of the Collateral Trust Bonds of the 6
7/8% Series is registered at the close of business on any record
date (as hereinafter defined) with respect to any interest payment
date shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such
Collateral Trust Bonds of the 6 7/8% Series upon any transfer or
exchange subsequent to the record date and prior to such interest
payment date; provided, however, that if and to the extent the
Company shall default in the payment of the interest due on
such interest payment date, such defaulted interest shall be paid as
provided in Section 307 of the Indenture.
The term "record date" as used in this Section with respect
to any interest payment date shall mean the April 15 or October 15,
as the case may be, next preceding the semi-annual interest payment
date, or, if such April 15 or November 15 shall be a legal holiday
or a day on which banking institutions in the Borough of Manhattan,
the City of New York, State of New York or in the City of Chicago,
State of Illinois, are authorized by law to close, then the next
preceding day which shall not be a legal holiday or a day on which
such institutions are so authorized to close.
SECTION 2. The Collateral Trust Bonds of the 6 7/8%
Series shall be issued only as registered Bonds without coupons
of the denomination of $1,000, or any integral multiple of
$1,000, appropriately numbered. Subject to the terms and conditions
set forth in the Indenture, the Collateral Trust Bonds of the 6 7/8%
Series may be exchanged for one or more new Collateral Trust Bonds
of the 6 7/8% Series or other authorized denominations, for
the same aggregate principal amount, upon surrender thereof, to the
agency of the Company in the City of Chicago, Illinois, or, at the
option of the holder, at the agency of the Company in the City of New
York.
Collateral Trust Bonds of the 6 7/8% Series may be
exchanged or transferred without expense to the registered owner
thereof except that any taxes or other governmental charges that
may be imposed in connection with such transfer or exchange
shall be paid by the registered owner requesting such transfer or
exchange as a condition precedent to the exercise of such
privilege.
SECTION 3. Except as otherwise provided in this Section,
the registered owner of all Collateral Trust Bonds of the 6 7/8%
Series shall be CEDE & Co., as nominee of The Depository Trust Company
("DTC"). Payment of interest for any Collateral Trust Bonds of the 6
7/8% Series registered as of each record date in the name of CEDE &
Co. shall be made by wire transfer to the account of CEDE & Co.
on the interest payment date for such Collateral Trust Bonds of the
6 7/8% Series at the address indicated on the record date for CEDE &
Co. in the registration books of the Company kept by Trustee, as
registrar.
The Collateral Trust Bonds of the 6 7/8% Series
shall initially be issued in the form of one or more fully registered
global bonds ("Global Bonds") which will have an aggregate
principal amount equal to the Collateral Trust Bonds of the 6 7/8%
Series represented thereby. Upon initial issuance, the ownership of
the Collateral Trust Bonds of the 6 7/8% Series shall be registered
in the registration books of the Company kept by the Trustee in the
name of CEDE & Co., as nominee of DTC. The Trustee and the Company
may treat DTC (or its nominee) as the sole and exclusive owner of the
Collateral Trust Bonds of the 6 7/8% Series registered in its name
for the purposes of payment of the principal of, premium, if
any, or interest on such Collateral Trust Bonds of the 6 7/8%
Series, giving any notice permitted or required to be given to
Holders herein, registering the transfer of such Collateral Trust
Bonds of the 6 7/8% Series, obtaining any consent or other action to
be taken by Holders and for all other purposes whatsoever; and
neither the Trustee nor the Company shall be affected by any notice
to the contrary. Neither the Trustee nor the Company shall have
any responsibility or obligation to any DTC participant, any Person
claiming a beneficiary ownership interest in Collateral Trust Bonds of
the 6 7/8% Series registered in the name of CEDE & Co. under or
through DTC or any DTC participant, or any other Person which
is not shown on the registration books of the Company kept by the
Trustee as being a Holder with respect to the accuracy of any
records maintained by DTC, CEDE & Co. or any DTC participant; the
payment by DTC or any DTC participant to any beneficial owner of
any amount in respect of the principal of, premium, if any, or
interest on the Collateral Trust Bonds of the 6 7/8% Series
registered in the name of CEDE & Co.; the delivery to any DTC
participant or any beneficial owner of any notice which is permitted
or required to be given to Holders herein; the selection by DTC or any
DTC participant of any Person to receive payment in the event of a
partial payment of any Collateral Trust Bonds of the 6 7/8% Series
registered in the name of CEDE & Co.; or any consent given or other
action taken by DTC as Holder. The Paying Agent shall pay all
principal of, premium, if any, and interest on any Collateral Trust
Bonds of the 6 7/8% Series registered in the name of CEDE & Co.,
only to or upon the order of CEDE & Co., as nominee of DTC, and
all such payments shall be valid and effective to fully satisfy and
discharge the Company's obligations with respect to the principal
of, premium, if any, and interest on such Collateral Trust Bonds of
the 6 7/8% Series to the extent of the sum or sums so paid. Upon
delivery by DTC to the Trustee of written notice to the effect that
DTC had determined to substitute a new nominee in place of CEDE &
Co., and subject to the provisions herein with respect to record
dates, the words "CEDE & Co." herein shall refer to such new
nominee of DTC.
A Global Bond shall be exchangeable for definitive
certificates registered in the names of persons other than DTC or
its nominee only if (i) DTC notifies the Company that it is
unwilling or unable to continue as a depositary for such Global Bond
and no successor depositary shall have been appointed, or if at any
time DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, at a time when DTC is required to
be so registered to act as such depositary, (ii) the Company in its
sole discretion determines that such Global Bond shall be so
exchangeable or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Collateral Trust Bonds of the
6 7/8% Series. In any such event, the Trustee shall issue, register
the transfer of and exchange definitive certificates as requested by
DTC in appropriate amounts and the Company and the Trustee shall be
obligated to deliver definitive certificates. In the event definitive
certificates are issued to Holders other than DTC, the provisions
herein shall apply to, among other things, the registration,
transfer of and exchange of such certificates and the method of
payment of principal of, premium, if any, and interest on such
certificates. Whenever DTC requests the Company and the Trustee to do
so, the Trustee and the Company will cooperate with DTC in taking
appropriate action after reasonable notice (i) to make available
one or more separate certificates evidencing the Collateral Trust
Bonds of the 6 7/8% Series registered in the name of CEDE & Co., to
any DTC participant having Collateral Trust Bonds of the 6 7/8%
Series credited to its DTC account or (ii) to arrange for another
bonds depository to maintain custody of certificates evidencing such
Collateral Trust Bonds of the 6 7/8% Series.
So long as any Collateral Trust Bonds of the 6 7/8% Series
are registered in the name of CEDE & Co., as nominee of DTC, all
payments with respect to the principal of, premium, if any, and
interest on such Collateral Trust Bonds of the 6 7/8% Series and
all notices, with respect to such Collateral Trust Bonds of the 6
7/8% Series shall be made and given to DTC as provided in the Letter
of Representations dated April 16, 1997.
In connection with any notice or other communication to
be provided to Holders by the Company or the Trustee with respect to
any consent or other action to be taken by Holders, so long
as any Collateral Trust Bonds of the 6 7/8% Series are registered in
the name of CEDE & Co., as nominee of DTC, the Company or the
Trustee, as the case may be, shall establish a record date for
such consent or other action and give DTC notice of such record date
not less than 15 calendar days in advance of such record date to the
extent possible.
The notice requirements set forth in the Letter of
Representations with respect to redemptions, conversions and
mandatory tenders shall be effective whenever the Collateral Trust
Bonds of the 6 7/8% Series are registered in the name of DTC
or its nominee, notwithstanding any other provision herein, to the
extent such other provisions are incompatible with the notice
requirements set forth in the Letter of Representations.
SECTION 4. The Collateral Trust Bonds of the 6 7/8%
Series and the Trustee's Certificate of Authentication shall be
substantially in the following forms respectively:
[FORM OF FACE OF BOND]
[FORM OF LEGEND FOR GLOBAL BOND]
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
Issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein.
IES UTILITIES INC.
COLLATERAL TRUST BOND, ___% SERIES DUE ____.
No. ________ $_________
CUSIP ___________
IES UTILITIES INC., a corporation organized and existing
under the laws of the State of Iowa (the "Company," which term shall
include any successor corporation as defined in the Indenture
hereinafter referred to), for value received, hereby promises
to pay to ______________, or its registered assigns, the sum of
_____________ ($_______) dollars on the ___ day of _____, ____,
in any coin or currency of the United States of America which at
the time of payment is legal tender for public and private debts, and
to pay interest thereon in like coin or currency from ______ __,
____, payable semi-annually, on the ___ day of ______ and ______ in
each year, commencing _______ __, ____, at the rate of ___% per
annum, until the Company's obligation with respect to the payment of
such principal shall be discharged as provided in the Indenture
hereinafter mentioned. The interest so payable on any ___ day of
______ or ______ will, subject to certain exceptions provided in the
_____ Supplemental Indenture dated as of ______ __, ____, be paid to
the person in whose name this Collateral Trust Bond is registered at
the close of business on the immediately preceding ______ ____ or
______ ____, as the case may be. Except as otherwise provided
in the Indenture, any such interest not paid or duly provided
for shall forthwith cease to be payable to such person, and shall
either be paid to the person in whose name this Collateral Trust
Bond is registered at the close of business on a Special Record Date
for the payment of such interest to be fixed by the Trustee, notice
of which shall be given to holders of Collateral Trust Bonds of this
Series not less than 10 days prior to such Special Record Date, or
be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the
Collateral Trust Bonds of this Series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided for in said Indenture. Both principal of, and interest
on, this Collateral Trust Bond are payable at the agency of the
Company in the City of Chicago, Illinois, or, at the option of
the holder, at the agency of the Company in the City of New York.
This Collateral Trust Bond shall not be entitled to
any benefit under the Indenture or any indenture supplemental
thereto, or become valid or obligatory for any purpose, until
the form of certificate endorsed hereon shall have been signed by
or on behalf of The First National Bank of Chicago, the Trustee
under the Indenture, or a successor trustee thereto under the
Indenture, or by an authenticating agent duly appointed by the Trustee
in accordance with the terms of the Indenture.
The provisions of this Collateral Trust Bond are continued
on the reverse hereof and such continued provisions shall for all
purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, IES Utilities Inc. has caused
this Collateral Trust Bond to be signed (manually or by facsimile
signature) in its name by an Authorized Executive Officer, as
defined in the Indenture, and its corporate seal (or a facsimile
thereof) to be hereto affixed and attested (manually or by
facsimile signature) by an Authorized Executive Officer, as defined
in the Indenture.
Dated ________________ IES UTILITIES INC.
By_____________________________
Authorized Executive Officer
ATTEST:
_____________________________
Authorized Executive Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Collateral Trust Bonds of the
series designated therein referred to in the within-mentioned
Indenture and _____ Supplemental Indenture dated as of ______ __,
____.
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
By___________________________
Authorized Officer
[FORM OF REVERSE OF BOND]
IES UTILITIES INC.
COLLATERAL TRUST BOND, ____% SERIES DUE ____
This Collateral Trust Bond is one of a duly authorized issue
of Collateral Trust Bonds of the Company in an aggregate
principal amount of up to $________ of the series hereinafter
specified, all issued and to be issued under and equally secured by
an Indenture of Mortgage and Deed of Trust dated as of September 1,
1993, executed by the Company to The First National Bank of
Chicago, as Trustee (the "Trustee"), as supplemented by _____
supplemental indentures, (including a _____ Supplemental Indenture
dated as of ______ __, ____), each executed by the Company to
said Trustee (said Indenture, as so supplemented, being herein
sometimes referred to as the "Indenture"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a
description of the properties mortgaged and pledged, the nature and
extent of the security, the rights of registered owners of the
Collateral Trust Bonds and of the Trustee in respect thereof, and the
terms and conditions upon which the Collateral Trust Bonds are, and
are to be, secured. The Collateral Trust Bonds may be issued in
series, for various principal sums, may mature at different times,
may bear interest at different rates and may otherwise vary as
provided in the Indenture. This Collateral Trust Bond is one of a
series designated as the "Collateral Trust Bonds, ____% Series Due
____" (the "Collateral Trust Bonds of the ____% Series") of the
Company, in an aggregate principal amount of up to $________,
issued under and secured by the Indenture and described in the
_____ Supplemental Indenture thereto dated as of ______ __, ____
(the "_____ Supplemental Indenture") between the Company and the
Trustee.
The Collateral Trust Bonds of the ____% Series will not
be redeemable prior to their maturity by the Company; provided,
however, that such Bonds may be redeemed by the Company in whole at
any time or in part from time to time, up on at least 30 days
notice, at the redemption price equal to 100% of the principal
amount thereof, plus accrued interest to the date of redemption,
through application of cash received by the Trustee as a result of
properties of the Company being taken by eminent domain or being
sold to an entity possessing the power of eminent domain.
Each Holder of Collateral Trust Bonds of the ____%
Series shall have the right, at such Holder's option, to require the
Company to redeem such Holder's Bonds on ______ __, ____ (the
"Redemption Date") at a redemption price in cash equal to 100% of the
principal amount of such Bonds (the "Redemption Price"), together
with accrued and unpaid interest to the Redemption Date. Each
beneficial holder may exercise such right only with respect to
all of such beneficial holder's Collateral Trust Bonds of the
____% Series, and not a part thereof. To exercise the redemption
right, if the Collateral Trust Bonds of the ____% Series are not
then represented by a Global Bond, a Holder of Collateral Trust
Bonds of the ____% Series shall deliver to the Trustee (i) a duly
signed and completed "Notice to Elect Redemption" not earlier than
______ __, ____ and not later than 5:00 p.m., New York City time, on
______ __, ____, and, (ii) all of such Holder's Collateral Trust
Bonds of the ____% Series, duly endorsed, if required, for transfer
to the Company. Such Notice shall be irrevocable. If the Collateral
Trust Bonds of the ____% Series are then represented by a Global
Bond, a beneficial holder of Collateral Trust Bonds of the ____%
Series shall deliver a Notice to the broker or participant
through which such beneficial holder holds an interest in such
Collateral Trust Bonds of the ___ ____% Series and such Global Bond
may be delivered in such other manner as may be agreed to by DTC or
other securities depositary, as the case may be, the Company and the
Trustee; provided, however, that the corresponding notice to elect
redemption as to any such Collateral Trust Bonds of the ____% Series
represented by a Global Bond must nonetheless be received by the
Trustee from the Holder thereof no earlier than ______ __, ____
and no later than 5:00 p.m., New York City time, on ______ __,
____. The Collateral Trust Bonds of the ____% Series
surrendered for redemption shall, on the Redemption Date, become due
and payable at the Redemption Price, and from and after such date
(unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Collateral Trust Bonds of the ____%
Series shall cease to bear interest.
In case an Event of Default, as defined in the
Indenture, shall occur, the principal of all the Collateral Trust
Bonds of the ____% Series at any such time outstanding under the
Indenture may be declared or may become due and payable, upon the
conditions and in the manner and with the effect provided in the
Indenture. The Indenture provides that such declaration may be
rescinded under certain circumstances.
No reference herein to the Indenture and no provision of
this Collateral Trust Bond or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and premium, if any, and
interest on this Collateral Trust Bond at the times, place and rate,
in the coin or currency, and in the manner, herein prescribed.
To the extent permitted on the front hereof, this
Collateral Trust Bond may be exchanged or transferred without
expense to the registered owner hereof except that any taxes or
other governmental charges that may be imposed in connection with
such transfer or exchange shall be paid by the registered owner
requesting such transfer or exchange as a condition precedent to
the exercise of such privilege.
Prior to due presentment of this Collateral Trust Bond
for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose
name this Collateral Trust Bond is registered as the absolute owner
hereof for all purposes, whether or not this Collateral Trust Bond
be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
As provided in the Indenture, no recourse shall be had for
the payment of the principal of or premium, if any, or interest on
any Collateral Trust Bonds or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or
agreement under the Indenture, against, and no personal liability
whatsoever shall attach to, or be incurred by, any incorporator,
stockholder, officer or director, as such, past, present or future
of the Company or of any predecessor or successor corporation
(either directly or through the Company or a predecessor or
successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that the Indenture and all the Collateral
Trust Bonds are solely corporate obligations and that any
such personal liability is hereby expressly waived and released as
a condition of, and as part of the consideration for, the execution of
the Indenture and the issuance of the Collateral Trust Bonds.
NOTICE TO ELECT REDEMPTION
The undersigned hereby irrevocably requests and instructs
IES Utilities Inc. (the "Issuer") to redeem on ______ __, ____, all
of the Collateral Trust Bonds of the ____% Series which it holds,
pursuant to the terms set forth in such Bonds and in the ____
Supplemental Indenture dated as of ______ __, ____ between the Issuer
and The First National Bank of Chicago (the "Trustee") to the
Indenture of Mortgage and Deed of Trust dated as of September 1,
1993 between the Issuer and the Trustee (the Indenture, as so
supplemented by the _____ Supplemental Indenture, the "Indenture").
Capitalized terms used herein without definition shall have the
meanings ascribed to such terms in the Indenture.
The undersigned acknowledges that, in order for the
Collateral Trust Bonds of the ____% Series to be redeemed
pursuant to this election, (i) the Trustee must receive this "Option
to Elect Redemption" form, duly completed, from the undersigned (in
the event Collateral Trust Bonds of the ____% Series are not then
represented by a Global Bond), or (ii) the Trustee must receive a
notice to elect redemption of the undersigned's Collateral Trust
Bonds of the ____% Series from the Holder thereof (in the event the
Collateral Trust Bonds of the ____% Series are then represented by
a Global Bond), in each case at The First National Bank of Chicago, 14
Wall Street, 8th Floor, Window 2, New York, New York 10005, or at
such other place or places in New York, New York as the Issuer may
from time to time notify to the Holders of the Bonds, no earlier than
______ __, ____ and no later than 5:00 P.M., New York City time, on
______ __, ____.
The undersigned hereby certifies that the principal amount
of Collateral Trust Bonds of the ____% Series owned beneficially by
the undersigned is as follows: $___________.
Dated: _________________, ____
Name of beneficial holder:
__________________________________
By:_______________________________
Name:
Title:
[END OF BOND FORM]
ARTICLE II
ISSUE OF COLLATERAL TRUST BONDS
SECTION 1. Pursuant to the terms of Section 401 of
the Indenture, the Company hereby exercises the right to obtain
the authentication of $55,000,000 principal amount of Collateral
Trust Bonds.
SECTION 2. Such Collateral Trust Bonds of the 6 7/8%
Series may be authenticated and delivered prior to the filing for
recordation of this Fifth Supplemental Indenture.
ARTICLE III
REDEMPTION
SECTION 1. Redemption at Option of Company. The Collateral
Trust Bonds of the 6 7/8% Series will not be redeemable prior to
their maturity by the Company; provided, however, that such Bonds
may be redeemed by the Company in whole at any time or in part from
time to time, upon at least 30 days notice, at the redemption price
equal to 100% of the principal amount thereof, plus accrued interest
to the date of redemption, through application of cash received by the
Trustee as a result of properties of the Company being taken by
eminent domain or being sold to an entity possessing the power of
eminent domain.
SECTION 2. Redemption at Option of Holder. (a) Each
holder of Collateral Trust Bonds of the 6 7/8% Series shall have the
right, at such Holder's option, exercisable to the extent specified
in paragraph (b) below and during the period and in the manner
specified in paragraph (c) below, to require the Company to redeem,
and upon the exercise of such right the Company shall redeem, such
Holder's Collateral Trust Bonds of the 6 7/8% Series on May 1, 2002
(the "Redemption Date") at a redemption price in cash equal to 100%
of the principal amount of such Collateral Trust Bonds of the 6
7/8% Series (the "Redemption Price"), together with, to the extent
provided in paragraph (d) below, accrued and unpaid interest to the
Redemption Date.
(b) If, at the time of exercise of the redemption right, the
Collateral Trust Bonds of the 6 7/8% Series are represented by a
Global Bond, each beneficial holder may exercise such redemption
right only with respect to all of such beneficial holder's
Collateral Trust Bonds of the 6 7/8% Series, and not a part
thereof. If, at the time of exercise of the redemption right, the
Collateral Trust Bonds of the 6 7/8% Series are not represented
by a Global Bond, each Holder may exercise such redemption right
only with respect to all of such Holder's Collateral Trust Bonds of
the 6 7/8% Series, and not a part thereof.
(c) To exercise the redemption right, if the Collateral
Trust Bonds of the 6 7/8% Series are not then represented by a Global
Bond, a Holder of Collateral Trust Bonds of the 6 7/8% Series shall
deliver to the Trustee at its corporate trust office in The City of
New York (i) a duly signed and completed "Notice to Elect
Redemption" (a "Notice") in substantially the form provided herein,
not earlier than March 1, 2002 and not later than 5:00 p.m., New
York City time, on April 1, 2002, and (ii) all of such Holder's
Collateral Trust Bonds of the 6 7/8% Series, duly endorsed for
transfer to the Company if required by the Trustee or the Company.
Such Notice shall be irrevocable. Any Notice received other than
within the period specified herein shall be ineffective. If the
Collateral Trust Bonds of the 6 7/8% Series are then represented by a
Global Bond, a beneficial holder of Collateral Trust Bonds of the 6
7/8% Series shall deliver a Notice to the broker or participant
through which such beneficial holder holds an interest in such
Collateral Trust Bonds of the 6 7/8% Series and such Global Bond may
be delivered in such other manner as may be agreed to by DTC or other
securities depositary, as the case may be, the Company and the
Trustee; provided, however, that the corresponding notice to elect
redemption as to any such Collateral Trust Bonds of the 6 7/8%
Series represented by a Global Bond must nonetheless be received
by the Trustee from the Holder thereof no earlier than March 1,
2002 and no later than 5:00 p.m., New York City time, on April 1,
2002.
(d) The Collateral Trust Bonds of the 6 7/8%
Series surrendered for redemption shall, on the Redemption Date,
become due and payable at the Redemption Price, and from and after
such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Collateral Trust Bonds
of the 6 7/8% Series shall cease to bear interest. On the Redemption
Date, such Collateral Trust Bonds of the 6 7/8% Series shall be
redeemed by the Company at the Redemption Price plus accrued
interest to the Redemption Date, exclusive of installments of
interest whose stated Maturity is on or prior to the Redemption Date,
payment of which shall have been made or duly provided for to the
Holders of Collateral Trust Bonds of the 6 7/8% Series on the relevant
record date in accordance with Section 307 of the Indenture.
(e) On or before the Redemption Date, the Company
shall deposit with the Trustee an amount of money sufficient to
pay the Redemption Price and accrued interest, if any, of all the
Collateral Trust Bonds of the 6 7/8% Series which are to be redeemed
on that date.
ARTICLE IV
DESCRIPTION OF PROPERTY
To secure the payment of the principal of, premium, if
any, and interest, if any, on all Collateral Trust Bonds issued
under the Indenture and Outstanding (as defined in the Indenture),
when payable in accordance with the provisions thereof, and to secure
the performance by the Company of, and its compliance with, the
covenants and conditions of the Indenture, the Company hereby
grants, bargains, sells, conveys, assigns, transfers, mortgages,
pledges, sets over and confirms to the Trustee a security interest
in, all right, title and interest of the Company in and to the
property described in Exhibit A to this Fifth Supplemental Indenture.
TO HAVE AND TO HOLD all said property
hereby granted, bargained, sold, conveyed, assigned, transferred,
mortgaged, pledged, set over and confirmed, or in which a security
interest has been granted by the Company in this Fifth Supplemental
Indenture, unto the Trustee and its successors and assigns forever,
but in trust nevertheless upon the trusts, for the purposes, and
subject to all the exceptions and reservations, terms, conditions,
provisions and restrictions of the Indenture, and for the equal
and proportionate benefit and security of all present and future
holders of the Collateral Trust Bonds, without any preference,
priority or distinction of any one Collateral Trust Bond over any
other Collateral Trust Bond by reason of priority in the issue or
negotiation thereof or otherwise, except as may otherwise be
expressly provided in the Indenture, but subject, however, to all
the conditions, agreements, covenants, exceptions, limitations,
restrictions and reservations expressed or provided in the deeds or
other instruments of record affecting the property, or any part
or portion thereof, insofar as the same are at the time of
execution hereof in force and effect and permitted by law.
ARTICLE V
THE TRUSTEE
The Trustee hereby accepts the trusts hereby declared
and provided, and agrees to perform the same upon the terms and
conditions in the Indenture set forth and upon the following terms and
conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Fifth Supplemental Indenture or the due execution hereof by
the Company or for or in respect of the recitals contained
herein, all of which recitals are made by the Company solely.
In general, each and every term and condition contained in
Article Eleven of the Indenture shall apply to this
Supplemental Indenture with the same force and effect as if the
same were herein set forth in full, with such omissions,
variations and modifications thereof as may be appropriate to
make the same conform to this Fifth Supplemental Indenture.
ARTICLE VI
MISCELLANEOUS PROVISIONS
This Fifth Supplemental Indenture may be simultaneously
executed in any number of counterparts, each of which when so
executed shall be deemed to be an original; but such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Fifth Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as
of the day and year first above written.
IES UTILITIES INC.
By /s/ Larry D. Root
Larry D. Root
President & Chief Operating Officer
ATTEST:
/s/ Stephen W. Southwick
Stephen W. Southwick
Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
ATTEST:
/s/ Georgia E. Tsirbas
Georgia E. Tsirbas
Assistant Vice President
STATE OF IOWA )
) ss:
COUNTY OF LINN )
On the 24th day of April, 1997, before me personally
came Larry D. Root, to me known, who, being by me duly sworn, did
depose and say that he is the President & Chief Executive Officer of
IES UTILITIES INC., the corporation described in and which executed
the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority, acknowledging the instrument to be the
free act and deed of said corporation.
/s/ Kathleen C. Balvanz
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On the 30th day of April, 1997, before me personally
came John R. Prendiville to me known, who, being by me duly sworn, did
depose and say that he is a Vice President of THE FIRST NATIONAL
BANK OF CHICAGO, the national banking association described in
and which executed the foregoing instrument; that he knows the
seal of said national banking association; that the seal affixed to
said instrument is the seal of said national banking association;
that it was so affixed by authority of the Board of Directors of
said national banking association, and that he signed his name
thereto by like authority, acknowledging the instrument to be the
free act and deed of said national banking association.
/s/ Dana McCray
Notary Public
[Notarial Seal]
EXHIBIT A
DESCRIPTION OF PROPERTY
Boone County
Parcel `D' in Southeast quarter (1/4) of Southwest quarter (1/4)
of Section one (1), Township eighty-three (83) North, Range twenty-
five (25), West of the 5th P.M., Boone County, Iowa, as shown
on Plat recorded in Plat Book 19, Page 284, in the office of the
Recorder of Boone County, Iowa.
Iowa County
That part of the Southeast Quarter of the Southeast Quarter of
Section 16, Township 80 North, Range 10 West of the 5th P.M., Iowa
County, Iowa, described as follows:
Commencing at the Southeast corner of said Southeast Quarter;
thence North 90 degree 00'00" West (assumed bearing for this
description only) 33.02 feet along the South line of said
Southeast Quarter to a point 33.00 feet in perpendicular distance
West of the Eastline of said Southeast Quarter; thence North 1
degree 45'19" West 33.02 feet along a line 33 feet West of and
parallel to said East line to a point 33.00 feet in perpendicular
distance North of the South line of said Southeast Quarter said
point being the point of intersection of the North right-of-way line
of 190th Street and the West right-of-way line of County Road E77, and
said point being the point of beginning; thence North 90 degree
00'00" West 400.00 feet along said North right-of-way line;
thence North 1 degree 45'19" West 500.00 feet; thence North 90
degree 00'00" East 400.00 feet to a point of intersection with the
West right-of-way line of County Road E77; thence South 1 degree
45'19" East 500.00 feet along said West right-of-way line to the
point of beginning; Said tract contains 4.59 acres more or less and
is subject to easements of record.