UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report
(Date of earliest
event reported): August 2, 2004
Iowa 0-4117-1 42-0331370 ---------------- ----------------- ------------------ (State or other (Commission File (IRS Employer jurisdiction of Number) Identification No.) incorporation) |
On August 2, 2004, Interstate Power and Light Company (the "Company") agreed to sell $25 million aggregate principal amount of its 6.30% senior debentures due 2034 in a public offering through Lehman Brothers Inc., Merrill Lynch & Co. and Merrill Lynch, Pierce, Fenner & Smith, Incorporated. This offering is expected to close on August 5, 2004. The offering is a reopening of the Company's series of 6.30% senior debentures due 2034, $100 million aggregate principal amount of which were sold on May 6, 2004.
The senior debentures are subject to a Registration Statement on Form S-3 (Registration No. 333-114065) that the Company filed with the Securities and Exchange Commission ("SEC") relating to the public offering, pursuant to Rule 415 of the Securities Act of 1933, as amended, of up to an aggregate of $210 million of securities of the Company. In connection with the Company filing with the SEC a definitive prospectus supplement, dated July 28, 2004, and prospectus, dated April 15, 2004, relating to the public offering of senior debentures described above, the Company is filing certain exhibits as part of this Current Report on Form 8-K. See "Item 7. Financial Statements and Exhibits."
(a) Not applicable.
(b) Not applicable.
(1.1) Purchase Agreement, dated August 2, 2004, among Interstate Power and Light Company and Lehman Brothers Inc., Merrill Lynch & Co. and Merrill Lynch, Pierce, Fenner & Smith, Incorporated. (4.1) Officer's Certificate, dated August 2, 2004, reopening the 6.30% Senior Debentures due 2034. (5) Opinion of Foley & Lardner LLP, dated August 2, 2004. (23) Consent of Foley & Lardner LLP (contained in Exhibit (5) hereto). |
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
INTERSTATE POWER AND LIGHT COMPANY
Date: August 3, 2004 By: /s/ T. Hanson ------------------------------- Thomas L. Hanson Vice President and Treasurer |
INTERSTATE POWER AND LIGHT COMPANY
Exhibit Index to Current Report on Form 8-K Dated August 2, 2004
(1.1) Purchase Agreement, dated August 2, 2004, among Interstate Power and Light Company and Lehman Brothers Inc., Merrill Lynch & Co. and Merrill Lynch, Pierce, Fenner & Smith, Incorporated.
(4.1) Officer's Certificate, dated August 2, 2004, reopening the 6.30% Senior Debentures due 2034.
(5) Opinion of Foley & Lardner LLP, dated August 2, 2004.
(23) Consent of Foley & Lardner LLP (contained in Exhibit
(5) hereto).
Exhibit 1.1
INTERSTATE POWER AND LIGHT COMPANY
(an Iowa corporation)
6.30% SENIOR DEBENTURES DUE 2034
PURCHASE AGREEMENT
Dated: August 2, 2004
TABLE OF CONTENTS Page ---- 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.
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.
(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.
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.
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).
(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.
(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.
(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.
(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).
(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.
(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;
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.
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.
(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.
(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.
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.
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.
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
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.
Exhibit 4.1
INTERSTATE POWER AND LIGHT COMPANY
OFFICER'S CERTIFICATE
Dated as of August 2, 2004
Reopening a Series of Debt Securities
6.30% Senior Debentures due 2034
Pursuant to the Indenture Dated as of August 20, 2003
OFFICER'S CERTIFICATE
The undersigned, the Vice President and Treasurer of Interstate Power and Light Company, an Iowa corporation (the "Company"), hereby certifies as provided below pursuant to Section 301 of the Indenture, dated as of August 20, 2003 (the "Indenture"), between the Company and J.P. Morgan Trust Company, National Association, successor, as Trustee (the "Trustee"). This Officer's Certificate, dated August 2, 2004, is delivered, pursuant to authority granted to the undersigned by resolutions adopted January 28, 2004 by the Board of Directors of the Company, for the purpose of reopening pursuant to Section 301 of the Indenture a series of securities under the Indenture, which series was previously created, whose terms were previously set forth and to whose form were previously established, in each case pursuant to an Officer's Certificate, dated as of May 3, 2004 (the "May Certificate"), in accordance with Section 201 of the Indenture. Capitalized terms not otherwise defined herein are used as defined in the Indenture.
1. The Board of Directors of the Company has authorized the creation by the Company of one or more series of Securities under the Indenture through one or more Officer's Certificates and pursuant to such authorization and in accordance with the Indenture this Officer's Certificate is being delivered to the Trustee to reopen the series of Securities created by the May Certificate, increasing the aggregate principal amount of such Securities by $25,000,000.
2. As established by the May Certificate, the title of the series of Securities shall be "6.30% Senior Debentures due 2034"(herein called the "Debentures").
3. The aggregate principal amount of the Debentures which may be authenticated and delivered under the Indenture shall be U.S.$125,000,000 ($25,000,000 of which may be authenticated and delivered pursuant to this Officer's Certificate and $100,000,000 of which was authenticated and delivered pursuant to the May Certificate), except for Debentures authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debentures as provided in Sections 304, 305, 306, 406 or 1206 of the Indenture. Notwithstanding the foregoing limit on the aggregate principal amount of the Debentures, the Debentures may be reopened in accordance with Section 301 of the Indenture.
4. The Debentures shall be issuable in denominations of $1,000 and any integral multiple thereof.
5. Subject to earlier redemption, the principal of the Debentures shall be payable in U.S. dollars on May 1, 2034.
6. The Debentures shall bear interest at the rate of 6.30% per annum; such interest shall accrue from May 6, 2004 (or from and including the most recent interest payment date to which interest on the Debentures has been paid or provided for); the Interest Payment Dates on which such interest shall be payable shall be May 1 and November 1 in each year, commencing November 1, 2004; the Regular Record Dates for the determination of Holders to whom interest is payable shall be (1) the Business Day next preceding each Interest Payment Date, if the Debentures remain in book-entry only form, or (2) on the fifteenth calendar day before
each Interest Payment Date, if the Debentures do not remain in book-entry only form. Interest on the Debentures shall be payable in U.S. dollars.
7. Pursuant to the Indenture, the Trustee has been appointed as the Security Registrar for the Debentures. The Trustee is hereby further appointed as the initial Paying Agent and transfer agent of the Debentures. The principal of and interest on the Debentures shall be payable at the office of the Paying Agent, which shall initially be located in the Borough of Manhattan, The City of New York.
8. The Debentures shall be redeemable at the option of the Company at any time in whole or from time to time in part at a Redemption Price equal to the sum of (a)100% of the principal amount of the Debentures being redeemed, (b)accrued interest thereon to the Redemption Date, and (c)the Make-Whole Amount, if any, with respect to such Debentures; provided, however, that installments of interest on Debentures due on an Interest Payment Date which occurs on or before any Redemption Date shall be payable to the Holders of such Debentures who were registered Holders as of the close of business on the Record Date immediately preceding such Interest Payment Date.
9. The terms defined below shall, for all purposes of the Debentures under the Indenture and this Officer's Certificate, have the meanings specified, unless the context clearly otherwise requires or unless otherwise indicated:
"Make-Whole Amount" means, in connection with any optional redemption, the excess, if any, of (i) the aggregate present value as of the date of such redemption of each dollar of principal being redeemed and the amount of interest, exclusive of interest accrued to the Redemption Date, that would have been payable in respect of each such dollar 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 such notice of redemption is given, from the respective dates on which such principal and interest would have been payable if such redemption had not been made, to the Redemption Date, over (ii) the aggregate principal amount of the Debentures being redeemed. The Make-Whole Amount shall be calculated by the Company and set forth in a certificate of an Authorized Officer delivered to the Trustee, and the Trustee shall be entitled to rely on said certificate.
"Reinvestment Rate" means .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 amount of the Debentures being redeemed. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such 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 shall be used. If
the format or content of the Statistical Release changes in a manner that precludes determination of the Treasury yield in the above manner, then the Treasury yield shall be determined in the manner that most closely approximates the above manner, as reasonably determined by the Company.
"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 reports 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 required determination under the Indenture, then such other reasonably comparable index which shall be designated by the Company.
10. The Debentures shall not be subject to any sinking fund and shall not be repurchasable or redeemable at the option of a Holder.
11. The Debentures shall not be convertible into other securities of the Company or exchangeable for securities of another issuer.
12. Satisfaction and discharge under Section 701 of the Indenture shall be applicable to the Debentures; provided, however, that prior to any such satisfaction and discharge, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (a) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a revenue ruling, or (b) since the date of execution of this Officer's Certificate, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such satisfaction and discharge and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such satisfaction and discharge had not occurred.
13. The Debentures shall initially be issued in whole in the form of one or more permanent global Securities. The Depository Trust Company ("DTC"), a clearing agency registered under the Securities Exchange Act of 1934, as amended, shall initially serve as the depositary for such global Security or Securities. For so long as DTC shall be the depositary, all Debentures shall be registered in its name or in the name of a nominee thereof. While the Debentures are evidenced by one or more global Securities, the depositary or its nominee, as the case may be, shall be the sole Holder thereof for all purposes under the Indenture. Neither the Company nor the Trustee shall have any responsibility or obligation to the depositary's participants or the beneficial owners for whom they act with respect to their receipt from the depositary of payments on the Debentures or notices given under the Indenture. The global Security or Securities provided for hereunder shall bear such legend or legends as may be required from time to time by the depositary.
14. Except as herein described, Debentures in definitive form will not be issued. Notwithstanding the foregoing, in the event the Company decides to discontinue the use of global Securities, any Event of Default has occurred and is continuing or DTC is at
any time unwilling, unable or ineligible to continue as depositary and a successor depositary is not appointed by the Company within 90 days, the Company shall issue individual Debentures in certificated form to owners of "book-entry" ownership interests in exchange for the Debentures held by DTC or its nominee, as the case may be. In such instance, an owner of a "book-entry" ownership interest will be entitled to physical delivery of certificates equal in principal amount to such "book-entry" ownership interest and to have such certificates registered in its name. Individual certificates so issued will be issued in denominations of $1,000 or any multiple thereof.
15. Additional terms regarding the Debentures are as set forth in the form of the Debentures set forth below.
16. The form of the Debentures shall be substantially as follows:
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Company (as defined below) 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.
INTERSTATE POWER AND LIGHT COMPANY
6.30% SENIOR DEBENTURES DUE 2034
No. $_______________
CUSIP No. 461070 AD 6
INTERSTATE POWER AND LIGHT COMPANY, a corporation duly organized and existing under the laws of the State of Iowa (herein called the "Company," which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of ________________________ ($__________) on May 1, 2034 and to pay interest on said principal sum from May 6, 2004, or from and including the most recent interest payment date to which interest has been paid or duly provided for, semi-annually, in arrears, on May 1 and November 1 of each year (each such date, an "Interest Payment Date"), commencing November 1, 2004 at the rate of 6.30% per annum to, but not including, the date on which the principal hereof is paid or made available for payment. The amount of interest payable for any period will be computed on the basis of twelve 30-day months and a 360-day year. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Debenture (or one or more Predecessor Securities, as defined in the Indenture) is registered at the close of business, on the Regular Record Date for such interest, which shall be (1) the Business Day next preceding each such Interest Payment Date, if the Debentures remain in book-entry only form, or (2) on the fifteenth calendar day before each interest payment date, if the Debentures do not remain in book-entry only form. Any such interest installment not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder on such Regular Record Date and may either be paid to the Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Debentures not later 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 Debenture may be listed, or any book-entry system which may be applicable to this Debenture and upon such notice as may be required by such exchange or system, all as more fully provided in the Indenture.
Payment of the principal of and interest on any Debenture that is not a global Debenture will be made at the office or agency of the Company maintained for that purpose in The City of New York; provided, however, that at the option of the Company payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer in immediately available funds at such place and to such account as may be designated by the Person entitled thereto as specified in the Security Register. Payment of principal of and interest on any global Debenture will be made to DTC or its nominee, as the case may be, as the sole registered owner and the sole Holder of the global Debenture for all purposes under the Indenture. Payment of the principal of and interest on this Debenture will be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Additional provisions of this Debenture are continued on the two pages following the execution and authentication of this Debenture and such provisions have the same effect as though fully set forth in this place.
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Debenture shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, INTERSTATE POWER AND LIGHT COMPANY has caused this instrument to be duly executed under its corporate seal.
Dated: __________ __, 20__
INTERSTATE POWER AND LIGHT COMPANY
Attest:
This is one of the Debentures of the series designated herein referred to in the within-mentioned Indenture.
J.P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
INTERSTATE POWER AND LIGHT COMPANY
6.30% SENIOR DEBENTURES DUE 2034
This Debenture is one of a duly authorized issue of Debentures of the Company, designated as its "6.30% Senior Debentures due 2034" (herein called the "Debentures"), in aggregate principal amount of $125,000,000, issued under an Indenture, dated as of August 20, 2003 (herein call the "Indenture"), between the Company and J.P. Morgan Trust Company, National Association, successor, as Trustee (the "Trustee"), to which Indenture and the Officer's Certificates, dated May 3, 2004, and August 2, 2004, setting forth the terms and conditions of the Debentures, reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Debentures, and of the terms upon which the Debenture are, and are to be, authenticated and delivered.
The Company may redeem the Debentures at any time at the Company's option, in whole or in part, at a redemption price equal to the sum of the principal amount of the Debentures the Company redeems, accrued interest on that principal amount to the redemption date and the Make-Whole Amount (as defined in the Officer's Certificate), if any, with respect to those Debentures.
If an Event of Default with respect to the Debentures shall occur and be continuing, the principal of the Debentures may be declared due and payable in the manner, with the effect and subject to the conditions, provided in the Indenture.
The Indenture contains provisions for satisfaction and discharge at any time of the entire indebtedness of this Debenture upon compliance by the Company with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Debentures, to modify the Indenture in a manner affecting the rights of the Holders of the Debentures; provided that no such modification may, without the consent of the Holder of each Outstanding Debenture, (i) change the Stated Maturity of, the principal of, or any installment of principal of or interest on (except as provided in Section 312 of the Indenture), any Debenture, or reduce the principal amount thereof or the rate of interest thereon (or the amount of any installment of interest thereon) or change the method of calculating such rate or reduce any premium payable upon the redemption thereof, or change the coin or currency (or other property), in which the Debentures or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity of any Debenture or (ii) reduce the percentage in principal amount of the Outstanding Debentures of any series or any Tranche thereof, the consent of the Holders of which is required for any such modification of the Indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Debentures at the time Outstanding, on behalf of the Holders of all Debentures, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Debenture shall be conclusive and binding upon such Holder and upon all future Holders of this Debenture and of any Debenture issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Debenture at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations, including, if this Debenture is a global Debenture, the limitations set forth on the first page hereof, therein set forth, the transfer of this Debenture is registrable in the Security Register, upon surrender of this Debenture for registration of transfer at the office or agency of the Company in The City of New York maintained for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Debentures, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of transfer, the Company, the Trustee and any agent of the Trustee may treat the Person in whose name this Debenture is registered as the owner hereof for all purposes, whether or not this Debenture be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Debentures are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof.
All terms used in this Debenture which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the undersigned has set his hand as of the day and year first above written.
INTERSTATE POWER AND LIGHT COMPANY
By: /s/ Thomas L. Hanson ------------------------- Thomas L. Hanson Vice President and Treasurer |
EXHIBIT 5
FOLEY FOLEY & LARDNER LLP
ATTORNEYS AT LAW
777 East Wisconsin Avenue, Suite 3800
Milwaukee, Wisconsin 53202-5306
414.271.2400 TEL
414.297.4900 FAX
www.foley.com
August 2, 2004
CLIENT/MATTER NUMBER
026162-0113
Interstate Power and Light Company
Alliant Energy Tower
200 First Street, SE
Cedar Rapids, Iowa 52401
Ladies and Gentlemen:
We have acted as counsel for Interstate Power and Light Company, an Iowa corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-3 (Registration No. 333-114065) (the "Registration Statement"), including the prospectus constituting a part thereof, dated April 15, 2004, and the supplement to the prospectus, dated August 2, 2004 (collectively, the "Prospectus"), filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), relating to the issuance and sale by the Company of $25,000,000 aggregate principal amount of the Company's 6.30% Senior Debentures due 2034 (the "Debentures") in the manner set forth in the Registration Statement and the Prospectus. The Debentures will be issued under the Indenture, dated as of August 20, 2003 (the "Indenture"), between the Company and J.P. Morgan Trust Company, National Association, successor, as Trustee (the "Trustee"), and the officer's certificate, dated August 2, 2004 (the "Officer's Certificate"), reopening the series of debt securities of which the Debentures are a part and providing for the issuance of the Debentures.
As counsel to the Company in connection with the proposed issue and sale of the Debentures, we have examined: (a) the Registration Statement, including the Prospectus and the exhibits (including those incorporated by reference) constituting a part of the Registration Statement; (b) the Company's Restated Articles of Incorporation and Bylaws, each as amended to date; (c) the Indenture and the Officer's Certificate; and (d) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion.
In our examination of the above-referenced documents, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as copies.
Based upon the foregoing, assuming that the Indenture has been duly authorized, executed and delivered by, and represents the valid and binding obligation of, the Trustee, and having regard for such legal considerations as we deem relevant, we are of the opinion that:
1. The Company is validly existing as a corporation under the laws of the State of Iowa.
2. The Debentures, when executed, authenticated and issued in accordance with the Indenture and the Officer's Certificate and in the manner and for the consideration contemplated by
Brussels Detroit MILWAUKEE SAN DIEGO/DEL MAR TAMPA
CHICAGO JACKSONVILLE ORLANDO SAN FRANCISCO TOKYO
DENVER LOS ANGELES SACRAMENTO SILICON VALLEY WASHINGTON, D.C.
MADISON SAN DIEGO TALLAHASSEE WEST PALM BEACH
Interstate Power and Light Company
August 2, 2004
the Registration Statement and the Prospectus, will be legally issued and valid and binding obligations of the Company enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy or other applicable laws affecting the enforcement of creditors' rights generally or by the application of equitable principles.
We hereby consent to the deemed incorporation by reference
of this opinion into the Registration Statement and the Prospectus
and to the references to our firm therein. In giving this consent,
we do not admit that we are "experts" within the meaning of
Section 11 of the Securities Act or within the category of persons
whose consent is required by Section 7 of the Securities Act.
Very truly yours,
/s/ Foley & Lardner LLP |