1
EXHIBIT 1(a)
UNDERWRITING AGREEMENT
For the Purchase of Collateral Trust Bonds
of IES Utilities Inc.
IES UTILITIES INC.
x/x Xxxxxxxx, Xxxxxxx, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties, and subject to the terms and conditions, set
forth in this agreement ("Underwriting Agreement"), each Underwriter (defined
below) shall purchase from IES Utilities Inc. ("Company"), severally and not
jointly, and the Company shall sell to each of the Underwriters (defined below),
the principal amount of the Company's Collateral Trust Bonds set forth opposite
the name of such Underwriter in Schedule II hereto at the price specified in
Schedule I hereto, plus accrued interest, if any, at the rate specified in
Schedule I hereto. The aggregate principal amount of such Collateral Trust Bonds
being sold hereunder is hereinafter referred to as the "Bonds."
SECTION 2. Underwriters and Representative. The term
"Underwriters," as used herein, shall be deemed to mean the several persons,
firms, or corporations named in Schedule II hereto (including any substituted
Underwriters under the provisions of Section 6), and the term "Representative,"
as used herein, shall be deemed to mean the representative or representatives of
such Underwriters by whom or on whose behalf this Underwriting Agreement is
signed. If there shall be one person, firm, or corporation named in said
Schedule II, the term "Underwriters" and the term "Representative," as used
herein, shall mean that person, firm, or corporation. All obligations of the
Underwriters are several and not joint. The use of the term "Underwriter" herein
shall not be deemed to establish or admit that a purchaser of the Bonds is an
"Underwriter" of the Bonds as such term is defined in and used under the
Securities Act of 1933, as amended ("Securities Act").
SECTION 3. Description of the Bonds. The Bonds shall be in the
aggregate principal amount and shall mature on the date specified in Schedule I
hereto, and shall be issued under and secured by the Indenture of Mortgage and
Deed of Trust, dated as of September 1, 1993, of the Company to The First
National Bank of Chicago as Trustee ("Trustee"), as supplemented by ____
supplemental indentures and as it will be further supplemented by a supplemental
indenture ("Supplemental Indenture") relating to the Bonds. Said Indenture of
Mortgage and Deed of Trust, as so supplemented, is hereinafter referred to as
the "Mortgage". The Bonds shall bear interest at the rate per annum specified in
Schedule I hereto. The Bonds and the Mortgage are more fully described in the
Prospectus hereinafter referred to.
SECTION 4. Representations and Warranties of the Company.
The Company represents and warrants that:
(a) It has filed with the Securities and Exchange Commission
("Commission") two registration statements (File Nos. 33-62259 and
333-_____) (collectively, the "Registration Statement") for the
registration of up to an aggregate of $135,000,000 principal amount of the
Company's debt securities under the Securities Act. Registration statements
(File Nos. 33-62259 and 333-_____) have become effective. No stop order
suspending the effectiveness of the Registration Statement has been issued,
and no proceedings for that purpose have been initiated or threatened by
the Commission. The prospectus (including the supplement thereto) forming a
part of the Registration Statement, at that time pursuant to Item 12 of
Form S-3, is hereinafter referred to as the "Basic Prospectus." In the
event that the Basic Prospectus shall have been amended, revised, or
supplemented (but excluding any amendments, revisions, or supplements to
the Basic Prospectus relating solely to the offering of debt securities
other than the Bonds) prior to the time of effectiveness of this
Underwriting Agreement, and with respect to any documents filed by the
Company pursuant to Section 13, 14, or 15(d) of the Securities Exchange Act
of 1934, as amended ("Exchange Act"), after the time the Registration
Statement initially became effective and up to the time of effectiveness of
this Underwriting Agreement (but excluding documents incorporated therein
by reference relating solely to the offering of debt securities other than
the Bonds), which documents are deemed to be incorporated by reference in
the Basic Prospectus, the term "Basic Prospectus" as used herein shall also
mean such prospectus as so amended, revised, or supplemented. The
Registration Statement as it initially became effective and as it may have
been amended by any amendment thereto incorporated in the Basic Prospectus
(including for these purposes as an amendment any document incorporated by
reference in the Basic Prospectus) and the Basic Prospectus as it shall be
supplemented to reflect the terms of offering and sale of the Bonds by a
prospectus supplement ("Prospectus Supplement") to be filed with the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424"), are
hereinafter referred to as the "Registration Statement" and the
"Prospectus," respectively;
(b) After the time of effectiveness of this Underwriting Agreement,
the Company will not file (i) any amendment to the Registration Statement
(except any amendment relating solely to the offering of debt securities
other than the Bonds) or supplement to the Prospectus or (ii) prior to the
time that the Prospectus is filed with the Commission pursuant to Rule 424,
any document which is to be incorporated by reference in, or any supplement
(including the Prospectus Supplement) to, the Basic Prospectus, in either
case without prior notice to the Representative and Xxxxxx & Whitney LLP
("Counsel for the Underwriters"), or any such amendment, supplement, or
document to which said Counsel shall reasonably object on legal grounds in
writing. For purposes of this Underwriting Agreement, any document filed
with the Commission after the effectiveness of this Underwriting Agreement
and incorporated by reference in the Prospectus (except documents
incorporated by reference relating solely to the offering of debt
securities other than the Bonds) pursuant to Item 12 of Form S-3 shall be
deemed a supplement to the Prospectus;
(c) The Registration Statement, at the time of its effectiveness,
fully complied, the Mortgage, at the time of its execution, will fully
comply, and the Prospectus, when filed with the Commission pursuant to Rule
424 and at the Closing Date (hereinafter defined), as it may then be
supplemented or amended, will fully comply, in all material respects with
the applicable provisions of the Securities Act, the Trust Indenture Act of
1939, as amended ("Trust Indenture Act"), and the rules and regulations of
the Commission thereunder or pursuant to said rules and regulations will be
deemed to comply therewith; the documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, on the date first filed with
the Commission pursuant to the Exchange Act, fully complied and on the date
the Prospectus is filed with the Commission pursuant to Rule 424 and at the
Closing Date (hereinafter defined) will comply in all material respects
with the applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder or pursuant to said rules and
regulations were or will be deemed to comply therewith; on the date of
effectiveness of the Registration Statement and any post-effective
amendment thereto (but excluding in each case any post-effective amendment
relating solely to the offering of debt securities other than the Bonds)
or, if later than such dates, on the date that the Company's most recent
annual report on Form 10-K was filed with the Commission under the Exchange
Act, the Registration Statement, as amended by any such post-effective
amendment, 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; the Prospectus, at the date it is filed with the Commission
pursuant to Rule 424 and at the Closing Date (hereinafter defined), as it
may be amended or supplemented, will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
are made, not misleading; and on said dates and at such times, the
documents then incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, when read together with the Prospectus, or the Prospectus
as it may then be amended or supplemented, will not 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, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the foregoing representations and warranties in this
subsection (c) shall not apply to statements or omissions made in reliance
upon and in conformity with written information furnished to the Company by
or through the Representative on behalf of any Underwriter for use in
connection with the preparation of the Registration Statement or the
Prospectus, as they may be amended or supplemented, or to any statements in
or omissions from the statement of eligibility, as it may be amended, under
the Trust Indenture Act of the Trustee under the Mortgage;
(d) The Federal Energy Regulatory Commission has authorized the
issuance and sale of the Bonds; such authorization is in full force and
effect; the issuance and sale of the Bonds pursuant to this Underwriting
Agreement will not violate the terms of such authorization; and no other
authorization, approval or consent of any other governmental body or
regulatory authority is legally required for the issuance and sale of the
Bonds pursuant to this Underwriting Agreement, except such as have been
obtained under the Securities Act and the Trust Indenture Act and such as
may be required under the state securities or "blue sky" laws in connection
with the purchase and distribution of the Bonds by the Underwriters;
(e) The Company is a corporation duly incorporated, and validly
existing, and in good standing under the laws of the State of Iowa and has
full power and authority (corporate and other) under such laws to own its
properties and to conduct its business as described in the Registration
Statement and the Prospectus; and the Company does not own or lease
substantial properties or conduct its business in any state other than the
State of Iowa;
(f) The Bonds have been duly authorized, and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by and
secured by the Mortgage; the Supplemental Indenture will be substantially
in the form filed as an exhibit to the Registration Statement; the
Supplemental Indenture has been duly authorized and, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
except as limited by the Public Utility Registration Act pursuant to Ch.
476 of the Iowa Code et seq., and except in each case as the same may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law) and by an
implied covenant of good faith and fair dealing; and the Bonds and the
Mortgage will conform in all material respects to the descriptions thereof
in the Prospectus;
(g) The Class "A" Bonds, upon the basis of which the Bonds are to be
issued, have been duly authorized, and, when issued and delivered to the
Trustee pursuant to the Mortgage, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided and
secured by the 1940 Indenture (as defined in the Mortgage); the __________
Supplemental Indenture to the 1940 Indenture will be substantially in the
form filed as an exhibit to the Registration Statement; the __________
Supplemental Indenture has been duly authorized and, when executed and
delivered by the Company and the trustee under the 1940 Indenture, will
constitute a valid and binding instrument, enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency, reorganization or
other similar laws affecting enforcement of mortgages or other creditors'
rights and general equity principles; and the Class "A" Bonds and the 1940
Indenture will conform in all material respects to the descriptions thereof
in the Prospectus;
(h) The ISU 1923 Indenture (as defined in the Mortgage) conforms in
all material respects to the description thereof in the Prospectus; and
(i) The consummation by the Company of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in a
breach of any of the terms or provisions of, or constitute a default under,
the Company's Articles of Incorporation or Bylaws, as amended, or of any
indenture or other agreement or instrument to which the Company is now a
party, including the Agreement and Plan of Merger by and among WPL
Holdings, Inc., IES Industries Inc., and Interstate Power Company, dated as
of November 10, 1995, as amended.
SECTION 5. Offering. Forthwith upon the execution of this
Underwriting Agreement, the Representative, acting on behalf of the
Underwriters, shall advise the Company whether a public offering of the Bonds is
to be made, and, if so, shall furnish to the Company (which information shall be
confirmed in writing as soon as practicable thereafter) (a) the information with
respect to such offering of the Bonds and related matters that is required to
complete the Prospectus Supplement or any post-effective amendment to the
Registration Statement which may be required and a copy of any "agreement among
underwriters"; (b) if a post-effective amendment to the Registration Statement
is required, a consent, if necessary, to the filing of the post-effective
amendment or an acceptable power-of-attorney authorizing an available individual
to sign the consent on its behalf; and (c) such further information, if any, as
may be required to be furnished by the Company under the Federal Power Act. Such
information and the power-of-attorney may be provided by telecopier (in the case
of the power-of-attorney, followed promptly by an executed copy). Nothing in
this Underwriting Agreement shall be construed to require that the Underwriters
make any such public offering on a "fixed price" basis. The Representative
agrees to notify the Company in writing of any change in the plan of
distribution of the Bonds that would require a supplement to the Prospectus or
an amendment to the Registration Statement.
SECTION 6. Time and Place of Closing. Delivery of the Bonds
and payment therefor by check or checks, payable to the Company or its order, in
New York, New York, or by wire transfer, in immediately available funds, shall
be made at the offices of Winthrop, Stimson, Xxxxxx & Xxxxxxx, Xxx Xxxxxxx Xxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York time, on __________, or at
such other place, time, and/or date as the Representative and the Company may
agree upon in writing or as may be established in accordance with the following
paragraph. The hour and date of such delivery and payment are herein called the
"Closing Date."
The Bonds shall be delivered to the Representative for the
respective accounts of the Underwriters in registered form in such authorized
denominations and registered in such names as the Representative may reasonably
request in writing at least two business days prior to the Closing Date, or, to
the extent not so requested, in the names of the respective Underwriters in such
denominations as the Company shall determine.
For the purpose of expediting the checking of the Bonds by the
Representative, the Company agrees to make the Bonds available to the
Representative for checking not later than 2:30 P.M., New York time, on the last
business day preceding the Closing Date, at the New York office of The First
National Bank of Chicago, or at such other place, time, and/or date as may be
agreed upon between the Company and the Representative.
If any Underwriter shall fail or refuse (otherwise than for
some reason sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to purchase and pay
for the principal amount of Bonds that it has agreed to purchase and pay for
hereunder, the Company shall immediately give notice to the Representative of
the default of such Underwriter, and the other Underwriters shall have the right
within twenty-four (24) hours after the receipt of such notice by the
Representative to determine to purchase, or to procure one or more others, who
are members of the National Association of Securities Dealers, Inc. ("NASD")
(or, if not members of the NASD, who are foreign banks, dealers, or institutions
not registered under the Exchange Act and who agree in making sales to comply
with the NASD's Rules of Fair Practice), and satisfactory to the Company, to
purchase, upon the terms herein set forth, the principal amount of Bonds that
the defaulting Underwriter had agreed to purchase. If any non-defaulting
Underwriter or Underwriters shall determine to exercise such right, the
Representative shall give written notice to the Company of such determination
within twenty-four (24) hours after it shall have received notice of any such
default, and thereupon the Closing Date shall be postponed for such period, not
exceeding three business days, as the Company shall determine. If in the event
of such a default the Representative shall fail to give such notice, or shall
within such twenty-four (24) hour period give written notice to the Company that
no other Underwriter or Underwriters, or others, will exercise such right, then
this Underwriting Agreement may be terminated by the Company, upon like notice
given to the Representative, within a further period of twenty-four (24) hours.
If in such case the Company shall not elect to terminate this Underwriting
Agreement, it shall have the right, irrespective of such default:
(a) to require such non-defaulting Underwriters to purchase and pay
for the respective principal amounts of Bonds that they had severally
agreed to purchase hereunder, as hereinabove provided, and, in addition,
the principal amount of Bonds that the defaulting Underwriter shall have so
failed to purchase up to a principal amount thereof equal to one-ninth
(1/9th) of the respective principal amounts of Bonds that such
non-defaulting Underwriters have otherwise agreed to purchase hereunder,
and/or
(b) to procure one or more others, who are members of the NASD (or, if
not members of the NASD, who are foreign banks, dealers, or institutions
not registered under the Exchange Act and who agree in making sales to
comply with the NASD's Rules of Fair Practice), to purchase, upon the terms
herein set forth, the principal amount of Bonds that such defaulting
Underwriter had agreed to purchase, or that portion thereof that the
remaining Underwriters shall not be obligated to purchase pursuant to the
foregoing clause (a).
In the event the Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the Representative
within such further period of twenty-four (24) hours, and, thereupon, the
Closing Date shall be postponed for such period, not exceeding three business
days, as the Company shall determine. In the event the Company shall be entitled
to but shall not elect to exercise its rights under clause (a) and/or (b), the
Company shall be deemed to have elected to terminate this Underwriting
Agreement.
Any action taken by the Company under this Section 6 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Underwriting Agreement. Termination by the Company
under this Section 6 shall be without any liability on the part of the Company
or any non-defaulting Underwriter, except as otherwise provided in subsection
(g) of Section 7.
In the computation of any period of twenty-four (24) hours
referred to in this Section 6, there shall be excluded a period of twenty-four
(24) hours in respect of each Saturday, Sunday, or legal holiday which would
otherwise be included in such period of time.
SECTION 7. Covenants of the Company. The Company agrees with
each of the Underwriters:
(a) To deliver to the Representative a signed copy of the Registration
Statement as originally filed and of all amendments thereto relating to the
Bonds or a conformed copy thereof certified by an officer of the Company to
be in the form filed.
(b) To deliver to the Underwriters, through the Representative, prior
to 10:00 A.M. New York time on the business day after the date on which
this Underwriting Agreement becomes effective as many copies of the
Prospectus as the Representative may reasonably request.
(c) To cause the Prospectus to be filed with the Commission pursuant
to and in compliance with Rule 424, and to advise the Representative
promptly of the issuance of any stop order under the Securities Act with
respect to the Registration Statement or the institution of any proceedings
therefor of which the Company shall have received notice. The Company will
use its best efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time (not exceeding nine months) after the
Prospectus has been filed with the Commission pursuant to Rule 424 as the
Underwriters are required by law to deliver a prospectus, if any event
relating to or affecting the Company or of which the Company shall be
advised in writing by the Representative shall occur which in the Company's
opinion should be set forth in a supplement or amendment to the Prospectus
in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser of the Bonds, not
misleading, to notify the Representative of such event and to amend or
supplement the Prospectus by either (i) preparing and filing with the
Commission and furnishing to the Representative at the Company's expense a
reasonable number of copies of a supplement or supplements or an amendment
or amendments to the Prospectus or (ii) making an appropriate filing
pursuant to Section 13, 14, or 15(d) of the Exchange Act, which will
supplement or amend the Prospectus so that, as supplemented or amended, it
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser of the Bonds, not misleading;
provided that should such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume the expense of
preparing any such amendment or supplement. In case any Underwriter is
required to deliver a prospectus after the expiration of nine months from
the date the Prospectus is filed with the Commission pursuant to Rule 424,
the Company, upon the request of the Representative, will furnish to the
Representative, at the expense of such Underwriter, a reasonable quantity
of a supplemented or amended prospectus or supplements or amendments to the
Prospectus complying with Section 10(a) of the Securities Act.
(e) During such period of time after the date the Prospectus is filed
with the Commission pursuant to Rule 424 as a prospectus relating to the
Bonds is required to be delivered under the Securities Act, to file
promptly all documents required to be filed with the Commission pursuant to
Section 13, 14, or 15(d) of the Exchange Act.
(f) To make generally available to the Company's security holders as
soon as practicable an earning statement (which need not be audited) in
reasonable detail covering a period of at least twelve months beginning
after the "effective date of the registration statement" within the meaning
of Rule 158 under the Securities Act, which earning statement shall be in
such form, and be made generally available to security holders in such a
manner, as to comply with the requirements of Section 11(a) of the
Securities Act and Rule 158 promulgated under the Securities Act.
(g) Except as herein otherwise provided, to pay all expenses and taxes
(except transfer taxes) in connection with (i) the preparation and filing
of the Registration Statement and any amendments thereto, (ii) the
issuance, printing, and delivery of the Bonds, (iii) the preparation,
execution, filing, and recording of the Supplemental Indenture, (iv) any
fees charged by securities rating services for rating the Bonds and (v) the
typing, printing, and delivery to the Underwriters, through the
Representative, of reasonable quantities of copies of the Registration
Statement and the Prospectus, and any amendment or supplement thereto,
except as otherwise provided in paragraph (d) of this Section. The Company
shall not, however, be required to pay any amount for any expenses of the
Representative or any of the Underwriters, except that, if this
Underwriting Agreement shall be terminated in accordance with the
provisions of Section 8, 9, or 11, the Company will reimburse the
Representative for (i) the reasonable fees and disbursements of counsel for
the Underwriters, whose fees and disbursements the Underwriters agree to
pay in any other event, and (ii) their reasonable out-of-pocket expenses,
in an amount not exceeding a total of ten thousand dollars ($10,000),
incurred in contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to any of the
Underwriters for damages on account of loss of anticipated profits.
(h) Not to sell any additional Collateral Trust Bonds (other than
Collateral Trust Bonds of one or more series having a maturity or
maturities different from the date of maturity of the Bonds) without the
consent of the Representative until the earlier to occur of (i) the Closing
Date or (ii) in the case of an initial public offering at a fixed price by
the Underwriters, the date of the termination of the fixed price offering
restrictions applicable to the Underwriters. The Representative agrees to
notify the Company of such termination if it occurs prior to the Closing
Date.
SECTION 8. Conditions of Underwriters' Obligations. The
obligation of the Underwriters to purchase and pay for the Bonds shall be
subject to the accuracy of the representations and warranties made herein on the
part of the Company and to the following conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to and in compliance with Rule 424.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending before, or threatened by, the
Commission on the Closing Date; and at the Closing Date the Representative
shall have received a certificate, dated the Closing Date and signed by an
officer of the Company, to the effect that no such stop order has been or
is in effect and that no proceedings for such purpose are pending before,
or to the knowledge of the Company threatened by, the Commission.
(c) The authorization by the Federal Energy Regulatory Commission of
the issuance and sale of the Bonds shall be in full force and effect;
(d) At the Closing Date, the Representative shall have received from
____________, counsel for IES Industries Inc., Winthrop, Stimson, Xxxxxx &
Xxxxxxx, counsel to the Company, and Xxxxxx & Whitney LLP, counsel for the
Underwriters, opinions in substantially the form and substance set forth in
Exhibits A, B, and C hereto, respectively, (i) with such changes therein as
may be agreed upon by the Company and the Representative, with the approval
of counsel for the Underwriters, and (ii) if the Prospectus relating to the
Bonds shall be supplemented after the Prospectus shall have been filed with
the Commission pursuant to Rule 424, with changes therein to reflect such
supplementation.
(e) On the Closing Date, the Representative shall have received from
Xxxxxx Xxxxxxxx LLP a letter dated the Closing Date, in substantially the
form and substance set forth in Exhibit D hereto.
(f) At the Closing Date, the Representative shall have received a
certificate of the Company dated the Closing Date and signed by a Vice
President of the Company, to the effect that (i) the Federal Energy
Regulatory Commission has authorized the issuance and sale of the Bonds and
such authorization is in full force and effect, to the best knowledge of
the signer; (ii) since the most recent date as of which information is
given in the Prospectus, as it may have been amended or supplemented, there
has not been any material adverse change in the business, property, or
financial condition of the Company and there has not been any material
transaction entered into by the Company, other than transactions in the
ordinary course of business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may have been amended or
supplemented; and (iii) to the best knowledge of the signer, the
representations and warranties of the Company in this Underwriting
Agreement are true and correct in all material respects at and as of the
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date.
(g) All legal proceedings to be taken in connection with the issuance
and sale of the Bonds shall have been satisfactory in form and substance to
Counsel for the Underwriters.
If any of the conditions specified in this Section 8 shall not
have been fulfilled, this Underwriting Agreement may be terminated by the
Representative with the consent of the Underwriters, who may include the
Representative, which have agreed to purchase in the aggregate fifty percent
(50%) or more of the principal amount of the Bonds, upon notice thereof to the
Company. Any such termination shall be without liability of any party to any
other party, except as otherwise provided in subsection (g) of Section 7.
SECTION 9. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the following
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to and in compliance with Rule 424.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending before, or threatened by, the
Commission on the Closing Date.
(c) The authorization by the Federal Energy Regulatory Commission of
the issuance and sale of the Bonds shall be in full force and effect.
In case any of the conditions specified in this Section 9
shall not have been fulfilled, this Underwriting Agreement may be terminated by
the Company upon notice thereof to the Representative. Any such termination
shall be without liability of any party to any other party, except as otherwise
provided in subsection (g) of Section 7.
SECTION 10. Indemnification.
(a) The Company shall indemnify, defend, and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act from and against any and all losses,
claims, damages, or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or any other statute or
common law. The Company shall reimburse each such Underwriter and
controlling person for any legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees) incurred by them,
such reimbursement to be made as such expenses are incurred by them, in
connection with investigating any such losses, claims, damages, or
liabilities or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses, or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in a preliminary prospectus (if used prior to the
initial effective date of the Registration Statement), or in the Basic
Prospectus (if used prior to the date that the Prospectus is filed with the
Commission pursuant to Rule 424) or in the Registration Statement or the
Prospectus, as amended or supplemented (if any amendments or supplements
thereto shall have been made), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity agreement
contained in this paragraph shall not apply to any such losses, claims,
damages, liabilities, expenses, or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any such omission
or alleged omission, if such statement or omission was made in reliance
upon and in conformity with written information furnished to the Company by
or through the Representative on behalf of any Underwriter expressly for
use in connection with the preparation of the Registration Statement or the
Prospectus or any amendment or supplement to either thereof, or arising out
of, or based upon, statements in or omissions from that part of the
Registration Statement which shall constitute the statement of eligibility
under the Trust Indenture Act of the Trustee under the Indenture; and
provided further, that the indemnity agreement contained in this paragraph
shall not inure to the benefit of any Underwriter or of any person
controlling any Underwriter on account of any such losses, claims, damages,
liabilities, expenses, or actions arising from the sale of the Bonds to any
person if there shall not have been given or sent to such person on behalf
of such Underwriter (i) with or prior to the written confirmation of the
sale to such person a copy of the Prospectus, as then amended or
supplemented (exclusive for this purpose of any amendment or supplement
relating solely to any offering of debt securities other than the Bonds and
of any document which becomes incorporated by reference pursuant to Item 12
of Form S-3 more than 3 business days prior to the date hereof), and (ii)
as soon as available after such written confirmation a copy of any
amendment or supplement to the Prospectus (exclusive for this purpose of
any document incorporated by reference pursuant to Item 12 of Form S-3)
which the Company shall thereafter furnish, pursuant to subsection (d) of
Section 7 hereof, relating to an event occurring prior to the payment for
and delivery to such person of the Bonds involved in such sale. The
indemnity agreement of the Company contained in this Section and the
representations and warranties of the Company contained in Section 4 shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any such
controlling person, and shall survive the delivery of the Bonds.
(b) Each Underwriter shall indemnify, defend, and hold harmless the
Company, its directors and officers, and each person who controls any of
the foregoing within the meaning of Section 15 of the Securities Act, from
and against any and all losses, claims, damages, or liabilities, joint or
several, to which they or any of them may become subject under the
Securities Act or any other statute or common law and shall reimburse each
of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them, such
reimbursement to be made as such expenses are incurred by them, in
connection with investigating any such losses, claims, damages, or
liabilities or in connection with defending any action, insofar as such
losses, claims, damages, liabilities, expenses, or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, as
amended or supplemented (if any amendments or supplements thereto shall
have been furnished), or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, if such statement or omission was made
in reliance upon and in conformity with written information furnished to
the Company by or through the Representative on behalf of such Underwriter
expressly for use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement to either
thereof. The indemnity agreement of the respective Underwriters contained
in this paragraph shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company, its
directors or officers, or any such controlling person, and shall survive
the delivery of the Bonds.
(c) The Company and the several Underwriters each shall, upon the
receipt of notice of the commencement of any action against it or any
person controlling it as aforesaid, in respect of which indemnity may be
sought on account of any indemnity agreement contained herein, promptly
give written notice of the commencement thereof to the party or parties
against whom indemnity shall be sought hereunder, but the omission so to
notify the indemnifying party or parties of any such action shall not
relieve the indemnifying party or parties from any liability which it or
they may have to the indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action shall be so
given, the indemnifying party shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of the action, in which event
the defense shall be conducted by counsel chosen by such indemnifying party
or parties and satisfactory to the indemnified party or parties who shall
be a defendant or defendants in the action, and the indemnified defendant
or defendants shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect not to assume
the defense of the action, the indemnifying party will reimburse the
indemnified party or parties for the reasonable fees and expenses of any
counsel retained by the indemnified party or parties. If the indemnifying
party does not employ counsel to take charge of the defense or if counsel
for the indemnifying party reasonably concludes that there may be defenses
available to the indemnified party which are different from or in addition
to those available to the indemnifying party (in which case the
indemnifying party will not have the right to assume the defense on behalf
of the indemnified party), legal expenses (limited to those of one counsel
for all indemnified parties) and other expenses reasonably incurred by the
indemnified party will be paid by the indemnifying party. No party will be
liable with respect to any settlement made without its prior written
consent.
(d) If the indemnification provided for in this Section 10 is
unavailable to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof)
as well as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statements of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statements or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) 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 equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Bonds 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 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
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(e) The respective obligations of the Company and the Underwriters
under this Section 10 shall be in addition to any liability which each of
them may otherwise have.
SECTION 11. Termination. This Underwriting Agreement may be
terminated at any time prior to the Closing Date by the Representative with the
consent of the Underwriters, who may include the Representative, which have
agreed to purchase in the aggregate fifty percent (50%) or more of the aggregate
principal amount of the Bonds, if, prior to such time, (i) trading in securities
on the New York Stock Exchange shall have been generally suspended, (ii) minimum
or maximum ranges for prices shall have been generally established on the New
York Stock Exchange by the New York Stock Exchange, the Commission, or other
governmental authority, (iii) a general banking moratorium shall have been
declared by federal or New York State authorities, (iv) an outbreak or
escalation of hostilities or other national or international calamity or crisis
occurs, the effect of which on the financial markets of the United States is
such as, in the reasonable judgment of the Representative, to make it
impracticable to market the Bonds or enforce contracts for the sale of the Bonds
or (v) in the reasonable judgment of the Representative, the subject matter of
any amendment or supplement (prepared by the Company) to the Basic Prospectus,
the Registration Statement or the Prospectus (except for information relating to
the public offering of the Bonds or to the activity of any Underwriter or
Underwriters) filed or issued after the effectiveness of this Underwriting
Agreement by the Company shall have materially impaired the marketability of the
Bonds. Any termination hereof pursuant to this Section 11 shall be without
liability of any party to any other party, except as otherwise provided in
subsection (g) of Section 7.
SECTION 12. Applicable Law. This Underwriting Agreement and
the Bonds to be sold hereunder shall be New York contracts, and their validity
and interpretation shall be governed by the laws of the State of New York.
SECTION 13. Successors. This Underwriting Agreement shall
inure to the benefit of the Company, the Underwriters and, with respect to the
provisions of Section 10, each director, officer, and controlling person
referred to in Section 10, and their respective successors. Nothing herein is
intended or shall be construed to give to any other person, firm, or corporation
any legal or equitable right, remedy, or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor" as used in this
Underwriting Agreement shall not include any purchaser, as such purchaser, of
any of the Bonds from any of the Underwriters.
SECTION 14. Notices. All communications hereunder shall be
in writing and, if to the Underwriters, shall be mailed or delivered to the
Representative at the address set forth below, or, if to the Company, shall be
mailed or delivered to it c/o IES Utilities Inc., 000 Xxxxx Xxxxxx, X.X., Xxxxx
Xxxxxx, Xxxx 00000 Attention: Treasurer.
SECTION 15. Counterparts. This Underwriting Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of such counterparts, when so executed and
delivered, shall be deemed to be an original, and all of such counterparts
shall, taken together, constitute one and the same agreement.
-----------
2
The stated interest rate to be borne by the Bonds and the
price to be paid to the Company therefor (stated as a percentage of the
principal amount of the Bonds), in each case are set forth in Schedule I hereto.
If said interest rate and price and this Underwriting Agreement are in
accordance with your understanding of our agreement, please indicate your
acceptance thereof in the space provided below for that purpose; whereupon, this
letter and your acceptance shall constitute a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
As Representative(s) of the Underwriters
By:
--------------------------------------
Name:
Title:
Address of Representative(s):
The foregoing Underwriting Agreement is hereby accepted as of the date set forth
below:
IES UTILITIES INC.
By:
--------------------------
Name:
Title:
Date:
3
SCHEDULE I
Underwriting Agreement dated
Registration Statements (Nos. 33-62259 and 333-_____)
Securities:
Designation: Collateral Trust Bonds ___% Series Due ____
Principal Amount: $
Date of Maturity:
Interest Rate: ___%
Commencement of Interest Accrual:
Purchase Price: ___%
Public Offering Price: ___%
Closing Date:
4
SCHEDULE II
Principal Amount
Name of Underwriter of Bonds
- ------------------- ----------------
$----------
Total $==========
5
EXHIBIT A
[Letterhead of IES Industries Inc.]
[Date]
Re: $__________ Collateral Trust Bonds ___% Series Due ____
Ladies and Gentlemen:
I am counsel for IES Industries Inc., the parent company of
IES Utilities Inc. (the "Company") and have participated in the issuance and
sale by the Company to you of $__________ aggregate principal amount of
Collateral Trust Bonds ___% Series Due ____ (the "Bonds"), issued under the
Company's Indenture of Mortgage and Deed of Trust, dated as of September 1,
1993, to The First National Bank of Chicago, as Trustee (the "Trustee"), as
heretofore supplemented and as supplemented by the _____ Supplemental Indenture
dated as of __________ (the "Supplemental Indenture") (said Mortgage of
Indenture and Deed of Trust as so supplemented is herein referred to as the
"Mortgage") pursuant to an Underwriting Agreement dated as of __________ between
you and the Company (the "Underwriting Agreement").
In this connection, I, or attorneys under my general
supervision, have examined, among other things, the following:
(a) the Registration Statement and the Prospectus (such
terms having the same meanings herein as in the Underwriting
Agreement);
(b) the Articles of Incorporation of the Company and all
amendments thereto, as certified by the Secretary of State of the
State of Iowa;
(c) a Certificate of the Secretary of State or other
appropriate state official certifying as to the good standing and
qualification of the Company to transact business in the State of
Iowa;
(d) the By-laws of the Company, certified by the Secretary
of the Company;
(e) the Mortgage;
(f) the Company's Indenture of Mortgage and Deed of Trust
dated as of August 1, 1940, to The First National Bank of
Chicago, as trustee, as amended and supplemented and as it is
further supplemented by the _____ Supplemental Indenture, dated
as of __________ (the "1940 Supplemental Indenture"), pursuant to
which certain First Mortgage Bonds of the Company (the "Class "A"
Bonds") have been issued (said Mortgage and Deed of Trust as so
amended and supplemented is herein referred to as the "1940
Indenture");
(g) the Company's Indenture of Mortgage and Deed of Trust
dated as of February 1, 1923, to The First National Bank of
Chicago, as trustee, as amended and supplemented ("ISU 1923
Indenture");
(h) Resolutions of the Executive Committee of the Board of
Directors of the Company dated _________, and the Chairman's
Certificate dated ___________, pertaining to the authorization
and sale of the Bonds, the terms and conditions thereof and
related matters;
(i) Abstracts of Title and Certificates for title searches
covering all pertinent county records in the various counties in
which property of the Company is situated, together with title
opinions of counsel deemed by me to be competent and reputable
and upon whom I believe I am justified in relying as to such
matters;
(j) copies of franchises of the Company and the proceedings
under which they were granted;
(k) the Application filed by the Company with the Federal
Energy Regulatory Commission seeking, among other things,
authority for and approval of the issuance and sale of Bonds and
a copy of the Letter of Authority issued by the Chief Accountant
of such Commission, dated __________, authorizing and approving
the issuance and sale of the Bonds;
(l) counterparts of the Underwriting Agreement executed by
you and the Company; and
(m) other information, documents, and material which I deem
sufficient along with the foregoing to support this opinion.
In addition, in connection with this opinion, I have reviewed
various orders and certificates of, and members of the legal staff of IES
Industries Inc. had telephone conversations with, public officials. I have not
examined the Bonds, except a specimen thereof.
6
Subject to the foregoing and to the further exceptions and
qualifications set forth below and having regard to all legal and factual
considerations which I deem relevant and based upon all such other information
and documents furnished to or obtained by me as I believe necessary to enable me
to render this opinion, including certificates of public officials, I am of the
opinion that:
1. The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the State of
Iowa, with full power and authority (corporate and other) to own its property
and to conduct its business as presently being conducted all within the State of
Iowa.
2. The Bonds, the Mortgage, the Class "A" Bonds, the 0000
Xxxxxxxxx and the ISU 1923 Indenture conform in all material respects to the
descriptions thereof in the Prospectus.
3. The Underwriting Agreement has been duly authorized,
executed and delivered on behalf of the Company.
4. The Class "A" Bonds have been duly authorized and, when
duly executed, authenticated, issued and delivered to the Trustee, will
constitute valid and legally binding obligations of the Company entitled to the
benefits and security provided by the 1940 Indenture, enforceable against the
Company in accordance with their terms except as the same may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to or affecting enforcement of creditors' rights
generally, by general principles of equity (regardless of whether or not
enforceability is considered in a proceeding in equity or at law).
5. The Bonds have been duly authorized and, when duly
executed, authenticated, issued and delivered to and paid for by you in
accordance with the terms of the Underwriting Agreement, will constitute valid
and legally binding obligations of the Company entitled to the benefits and
security provided by the Mortgage, enforceable against the Company in accordance
with their terms except as the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws relating
to or affecting enforcement of creditors' rights generally, by general
principles of equity (regardless of whether or not enforceability is considered
in a proceeding in equity or at law).
6. The Mortgage, the 0000 Xxxxxxxxx, and the ISU 1923
Indenture have been duly and validly authorized by all necessary corporate
action of the Company, have been duly executed, acknowledged and delivered by
the Company and are valid and legally binding instruments enforceable against
the Company in accordance with their terms, except as limited by laws with
respect to or affecting the remedies to enforce the security provided by the
Mortgage, which laws do not, in my opinion, make inadequate the remedies
necessary for the realization of the benefits of such security, and except as
the same may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, by general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and by an implied covenant of good faith and fair dealing.
7. The execution and delivery of the Underwriting Agreement,
the consummation of the transactions therein contemplated and the fulfillment of
the terms thereof do not and will not conflict with, or result in a breach by,
the Company of any of the terms or provisions of, or constitute a default under,
the Articles of Incorporation or By-laws of the Company, the Mortgage, the 0000
Xxxxxxxxx or the ISU 1923 Indenture, or to the best of my knowledge after
reasonable investigation, any other indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which it or any of
its properties are bound, including the Agreement and Plan of Merger, by and
among, WPL Holdings, Inc., IES Industries Inc., Interstate Power Company (a
Delaware corporation), WPLH Acquisition Co., and Interstate Power Company (a
Wisconsin corporation), dated as of November 10, 1995, as amended.
8. The Company has good and valid title to all of the
principal properties subject to the lien of the Mortgage, subject only to (a)
Permitted Liens (as defined in the Mortgage), (b) the prior lien of the 1940
Indenture on certain properties of the Company, (c) the prior lien of the ISU
1923 Indenture on certain other properties of the Company and (d) minor
restrictions, exceptions and reservations in conveyance and defects which are of
a nature ordinarily found in property of a similar character and magnitude; and
the Company possesses the power of eminent domain with respect to its present
public utility operations.
9. The references in the Mortgage to the descriptions in the
0000 Xxxxxxxxx and the ISU 1923 Indenture of the properties subject to the lien
of the 0000 Xxxxxxxxx and the ISU 1923 Indenture are adequate to constitute the
Mortgage a lien on such properties, subject only to (a) Permitted Liens (as
defined in the Mortgage), (b) the prior lien of the 1940 Indenture on certain
properties of the Company, (c) the prior lien of the ISU 1923 Indenture on
certain other properties of the Company and (d) minor restrictions, exceptions
and reservations in conveyance and defects which are of a nature ordinarily
found in property of a similar character and magnitude; the Mortgage constitutes
a valid direct mortgage lien upon all physical properties in the State of Iowa
acquired by the Company after the date of the Mortgage, subject only to (v)
Permitted Liens (as defined in the Mortgage), (w) the prior lien of the 1940
Indenture on certain properties of the Company, (x) the prior lien of the ISU
1923 Indenture on certain other properties of the Company, (y) minor
restrictions, exceptions and reservations in conveyance and defects which are of
a nature ordinarily found in property of a similar character and magnitude and
(z) liens, charges or encumbrances existing or placed thereon at the time of
acquisition.
10. The 1940 Indenture constitutes a valid direct first
mortgage lien upon all properties subject to the lien thereof, subject only to
(a) Permitted Encumbrances as defined therein, and (b) minor restrictions,
exceptions and reservations in conveyance and defects which are of a nature
ordinarily found in property of a similar character and magnitude; the 1940
Indenture constitutes and will constitute a valid direct first mortgage lien
upon all physical properties and franchises in the State of Iowa acquired by the
Company after the date of the 1940 Indenture until the Merger of Iowa Southern
Utilities Company into the Company on December 31, 1993, and on all property
thereafter acquired by the Company other than property which is appurtenant to
the property owned by Iowa Southern Utilities Company immediately prior to such
merger, subject only to (x) Permitted Encumbrances (as defined therein), (y)
minor restrictions, exceptions and reservations in conveyance and defects which
are of a nature ordinarily found in property of similar character and magnitude,
and (z) any liens, charges or encumbrances existing or placed thereon at the
time of acquisition.
11. The ISU 1923 Indenture constitutes a valid direct first
mortgage lien upon all properties subject to the lien thereof, subject only to
(a) Permitted Liens as defined therein, and (b) minor restrictions, exceptions
and reservations in conveyance and defects which are of a nature ordinarily
found in property of a similar character and magnitude; the ISU 1923 Indenture
constitutes and will constitute a valid direct first mortgage lien upon all
physical properties and franchises in the State of Iowa acquired by Iowa
Southern Utilities Company after the date of the ISU 1923 Indenture until the
Merger of Iowa Southern Utilities Company into the Company on December 31, 1993,
and, on all property thereafter acquired by the Company which is appurtenant to
the property owned by Iowa Southern Utilities Company immediately prior to such
merger, subject only to (x) Permitted Liens (as defined therein), (y) minor
restrictions, exceptions and reservations in conveyance and defects which are of
a nature ordinarily found in property of similar character and magnitude, and
(z) any liens, charges or encumbrances existing or placed thereon at the time of
acquisition.
12. The Mortgage, the 0000 Xxxxxxxxx, and the ISU 1923
Indenture have been duly filed and recorded in all jurisdictions in which it is
necessary for the Mortgage, the 1940 Indenture, and the ISU 1923 Indenture to be
filed and recorded in order to constitute a lien of record on the property
subject thereto; appropriate financing statements have been filed in the
appropriate offices in the State of Iowa; and each such recording or filing is
fully effective to give constructive notice of the contents of each such
recorded or filed document to all purchasers, mortgagees and secured parties
(except for after-acquired property) covered thereby.
13. The Chief Accountant of the Federal Energy Regulatory
Commission ("FERC") has authorized the issuance and sale of the Bonds, which
authorization is, to the best of my knowledge, still in full force and effect;
the issuance and sale of the Bonds to you pursuant to the Underwriting Agreement
are in conformity with the terms of such authorization; and no other
authorization, approval or consent of any other governmental body is legally
required for the issuance and sale of the Bonds pursuant to the Underwriting
Agreement, except such as have been obtained under the Securities Act of 1933,
as amended ("Securities Act"), and such as may be required under state
securities or blue sky laws in connection with the purchase and distribution of
the Bonds by you.
14. Except as referred to in the Registration Statement and
Prospectus, to the best of my knowledge, there are no material or contemplated
legal proceedings to which the Company is or may be a party or of which property
of the Company is or may be subject which depart from the ordinary routine
litigation incident to the kinds of business conducted by the Company.
15. The documents incorporated by reference in the Prospectus
(other than the financial statements and financial and statistical data, as to
which I express no opinion), when they were filed with the Securities and
Exchange Commission (the "Commission"), complied as to form in all material
respects with the requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder of the Commission; and I have no reason to
believe that any of such documents, when they were so filed, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not misleading.
16. To the best of my knowledge, there are no contracts or
other instruments or documents of a character required to be filed as an exhibit
to the Registration Statement or required to be incorporated by reference into
the Prospectus or required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or described as
required.
17. The Company has the legal right to function and operate as
an electric and gas utility in the State of Iowa, holds valid and subsisting
franchises authorizing it to carry on the utility business in which it is
engaged in all incorporated communities having a population of 1,000 or more
[(except in ______________, Iowa, where operations have not been impaired by the
expiration of such franchises)], and has adequate licenses and permits where
required by law to maintain electric and gas transmission and distribution lines
through unincorporated areas and over public lands not located in incorporated
communities and over private rights-of-way in the territory which it serves.
I am a member of the bar of the State of Iowa and do not hold
myself out as an expert on the laws of any other State. With respect to the
opinions set forth in Paragraphs 4, 5, and 6 above, I call your attention to the
fact that the provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustee, as defined in the Mortgage, or
other purchasers pursuant to the remedial provisions of the Mortgage, the 1940
Indenture, or the ISU 0000 Xxxxxxxxx) who seek to acquire, possess or use
nuclear production facilities.
The opinion set forth above is solely for the benefit of the
addressees of this letter and may not be relied upon in any manner by any other
person without my prior written consent, except that Winthrop, Stimson, Xxxxxx &
Xxxxxxx may rely on this opinion as to all matters of Iowa law in rendering
their opinions required to be delivered under the Underwriting Agreement.
Very truly yours,
7
EXHIBIT B
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
[Date]
Re: IES Utilities Inc.
$__________ Collateral Trust Bonds ___% Series Due ____
Ladies and Gentlemen:
We have acted as Counsel for IES Utilities Inc. ("Company") in
connection with the issuance and sale by the Company to you pursuant to the
Underwriting Agreement dated __________ ("Underwriting Agreement") between the
Company and you, of $_________ in principal amount of Collateral Trust Bonds
___% Series Due ____ (the "Bonds"), issued under the Company's Indenture of
Mortgage and Deed of Trust, dated as of September 1, 1993, to The First National
Bank of Chicago, as Trustee (the "Trustee"), as heretofore supplemented and as
further supplemented by the _____ Supplemental Indenture, dated as of
__________. Said Indenture of Mortgage and Deed of Trust as so supplemented is
herein referred to as the "Mortgage".
We are members of the New York Bar and, for purposes of this
opinion, do not hold ourselves out as experts on the laws of any jurisdiction
other than the State of New York and the United States of America. We have, with
your consent, relied upon the opinion of even date herewith addressed to you by
__________, Counsel for IES Industries Inc., as to the matters covered in such
opinion relating to Iowa law. We have reviewed said opinion and believe that it
is satisfactory and that you and we are justified in relying thereon.
We also examined such other documents and questions of law and
satisfied ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. We have not examined and are
expressing no opinion or belief as to matters relating to the incorporation of
the Company, titles to property of the Company, franchises of the Company, or
the descriptions of properties in, the nature and the extent of the lien of, the
absence of liens and encumbrances prior to the lien of, or the recordation of,
the Mortgage, IELP 1940 Mortgage and ISU 1923 Mortgage (the terms "IELP 1940
Mortgage" and "ISU 1923 Mortgage" as used herein shall have the same meaning as
those terms in the Mortgage). We also have not examined the Bonds, except a
specimen thereof. As to various questions of fact material to this opinion, we
have relied upon representations and certificates of officers and
representatives of the Company and statements in the Registration Statement (the
terms "Registration Statement" and "Prospectus," as used herein, have the same
meanings as those words in the Underwriting Agreement). We have also examined
originals, or copies of originals certified to our satisfaction, of such
agreements, documents, certificates and other instruments as we have considered
relevant and necessary as a basis for such opinion. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
1. The Mortgage has been duly and validly authorized by all
necessary corporate action of the Company, has been duly executed, acknowledged
and delivered by the Company and is a valid and legally binding instrument
enforceable against the Company in accordance with its terms, except as limited
by laws with respect to or affecting the remedies to enforce the security
provided by the Mortgage, and by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, by general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and by an implied covenant of good faith and fair dealing; and the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
2. The Bonds have been duly authorized and, when duly
executed, authenticated, issued and delivered to and paid for by you in
accordance with the terms of the Underwriting Agreement, will constitute valid
and legally binding obligations of the Company entitled to the benefits and
security provided by the Indenture enforceable against the Company in accordance
with their terms except as the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws relating
to or affecting enforcement of creditors' rights generally, by general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of good faith and
fair dealing.
3. The summaries of the terms of the Mortgage, the Bonds, the
Class "A" Bonds (as defined in the Mortgage), the IELP 1940 Mortgage and the ISU
1923 Mortgage contained in the Registration Statement and the Prospectus fairly
describe in all material respects the provisions thereof required to be
described by the registration statement form.
4. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
5. The execution and delivery of the Underwriting Agreement,
the consummation of the transactions therein contemplated and the fulfillment of
the terms thereof do not and will not conflict with, or result in a breach by
the Company of, any of the terms or provisions of, or constitute a default
under, the Articles of Incorporation or By-laws of the Company, the Mortgage,
the IELP 1940 Mortgage, the ISU 1923 Mortgage, or, to the best of our knowledge,
any other indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is a party or by which it or any of its properties are bound.
6. The Chief Accountant of the Federal Energy Regulatory
Commission has authorized the issuance and sale of the Bonds, which
authorization is, to the best of our knowledge, still in full force and effect;
the issuance and sale of the Bonds to you pursuant to the Underwriting Agreement
are in conformity with the terms of such authorization; and no other
authorization, approval or consent of any other federal commission or regulatory
authority is legally required for the issuance and sale of the Bonds pursuant to
the Underwriting Agreement, except such as have been obtained under the
Securities Act of 1933, as amended ("Securities Act") or the Trust Indenture
Act.
7. To the best of our knowledge, the Registration Statement
is, at the date hereof, effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for a stop order with respect thereto have been instituted or are
pending or threatened under the Securities Act; the Registration Statement, at
the time of its effectiveness, and the Prospectus, at the time first filed with
the Securities and Exchange Commission ("Commission") pursuant to Rule 424 under
the Securities Act, complied as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act, and the
applicable rules and regulations of the Commission thereunder (except that we
express no opinion as to the financial statements or other financial or
statistical data included or incorporated by reference therein or as to the Form
T-1 filed as an exhibit to the Registration Statement).
8. The Company and IES Industries Inc. are currently exempt
from regulation under the Public Utility Holding Company Act of 1935, as
amended, except under Section 9(a)(2) thereof.
9. To the best of our knowledge, there are no contracts or
other instruments or documents of a character required to be filed as an exhibit
to the Registration Statement or required to be incorporated by reference into
the Prospectus or required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or described as
required.
In passing upon the forms of the Registration Statement and
the Prospectus, we necessarily assume the correctness and completeness of the
statements made by the Company and the information included or incorporated by
reference in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate to us and as
set forth in paragraph 3 above. In connection with the preparation of the
Registration Statement and the Prospectus, we have had discussions with certain
of the Company's officers and representatives, with other counsel for the
Company, with your counsel and with Xxxxxx Xxxxxxxx LLP, the independent
certified public accountants who examined certain of the financial statements
included or incorporated by reference in the Registration Statement. Our
examination of the Registration Statement and the Prospectus and our discussions
did not disclose to us any information that gives us reason to believe that the
Registration Statement, at the time it 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, at the time first filed with the Commission pursuant to
Rule 424 under the Securities Act and at the date hereof, contained or contains
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. We do not express any
opinion or belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the Registration
Statement or the Prospectus or as to the statements contained in the Form T-1
filed as an exhibit to the Registration Statement.
With respect to the opinions set forth in Paragraphs 1 and 2
above, we call your attention to the fact that the provisions of the Atomic
Energy Act of 1954, as amended, and regulations promulgated thereunder impose
certain licensing and other requirements upon persons (such as the Trustee, as
defined in the Mortgage, or other purchasers pursuant to the remedial provisions
of the Mortgage, the IELP 1940 Mortgage, and the ISU 1923 Mortgage) who seek to
acquire, possess or use nuclear production facilities.
As used in this opinion, the phrase "to the best of our
knowledge" is intended to mean the actual knowledge or information known by the
lawyers in our firm who have been principally involved in the transactions
contemplated by the Underwriting Agreement.
The opinion set forth above is solely for your benefit in
connection with the Underwriting Agreement and the transactions contemplated
thereunder and may not be quoted or furnished to, or relied upon in any manner
by, any other person or utilized for any other purpose without our prior written
consent.
Very truly yours,
WINTHROP, STIMSON, XXXXXX & XXXXXXX
8
EXHIBIT C
[Letterhead of Xxxxxx & Whitney LLP]
[Date]
Re: IES Utilities Inc.
$__________ Collateral Trust Bonds ___% Series Due ____
Ladies and Gentlemen:
We have acted as your counsel in connection with the issuance
and sale by IES Utilities, Inc. (the "Company") to you pursuant to the
Underwriting Agreement dated __________ ("Underwriting Agreement") between the
Company and you, of $__________ in principal amount of Collateral Trust Bonds
___% Series (the "Bonds"), issued under the Company's Indenture, dated as of
September 1, 1993, to The First National Bank of Chicago, as Trustee (the
"Trustee"), as supplemented by the _____ Supplemental Indenture, dated as of
__________. Said Indenture of Mortgage and Deed of Trust as so supplemented is
herein referred to as the "Mortgage"). This opinion is being delivered pursuant
to Section 8(d) of the Underwriting Agreement.
We have examined such documents and reviewed such questions of
law as we have considered necessary and appropriate for the purposes of this
opinion.
In rendering our opinions below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies or specimens. We have also assumed the legal capacity
for all purposes relevant hereto of all natural persons and, with respect to all
parties to agreements or instruments relevant hereto other than the Company,
that such parties had the requisite power and authority (corporate or other) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or other), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
on certificates of officers of the Company and of public officials.
Certain of our opinions expressed below as to factual matters
are qualified as being limited "to the best of our knowledge" or by other words
to the same or similar effect. Such words, as used herein, mean the information
known to ___________, ___________ and __________, the attorneys who have
represented you in connection with the transactions contemplated by the
Underwriting Agreement. In rendering such opinions, we have not conducted any
independent investigation or consulted with other attorneys in our firm with
respect to the matters covered thereby.
On the basis of such examination, we advise you that, in our
opinion:
1. The Company is a validly organized and existing corporation
in good standing under the laws of the State of Iowa.
2. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
3. The Mortgage has been duly and validly authorized by all
requisite corporate action, executed and delivered by the Company and
constitutes a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms.
4. The Mortgage has been duly qualified under the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act").
5. The Bonds have been duly authorized by all requisite
corporate action and, when duly executed, authenticated, issued and delivered to
and paid for by you in accordance with the terms of the Underwriting Agreement,
will constitute valid and legally binding obligations of the Company entitled to
the benefits and security provided by the Mortgage.
6. The Chief Accountant of the Federal Energy Regulatory
Commission has authorized the issuance and sale of the Bonds, which
authorization is, to the best of our knowledge, still in full force and effect;
the issuance and sale of the Bonds to you pursuant to the Underwriting Agreement
is in conformity with the terms of such authorization; and no other
authorization, approval or consent of any other federal commission or regulatory
authority is legally required for the issuance and sale of the Bonds pursuant to
the Underwriting Agreement, except such as have been obtained under the
Securities Act of 1933, as amended ("Securities Act"), or the Trust Indenture
Act.
7. The Company's registration statements on Form S-3 (File
Nos. 33-62259 and 333-_____) relating to the Bonds (collectively, the
"Registration Statement") have become effective under the Securities Act, and,
to the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop order with
respect thereto have been instituted or are pending or threatened under the
Securities Act.
8. The Company is a subsidiary of IES Industries Inc., an Iowa
corporation, and both are exempt from regulation under the Public Utility
Holding Company Act of 1935, as amended, except under Section 9(a)(2) thereof.
The opinions set forth above are subject to the following qualifications and
exceptions:
(a) Our opinions are subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar law of general application affecting creditors' rights.
(b) Our opinions are subject to the effect of general
principles of equity, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing, estoppel, election of remedies and
other similar doctrines affecting the enforceability of agreements generally
(regardless of whether considered in a proceeding in equity or at law).
(c) We express no opinion concerning any person's rights in or
title to any real or personal property. We express no opinion with regard to the
filing or recording of any agreement or instrument. We express no opinion with
respect to the validity, perfection or priority of any lien or security
interest.
(d) The rights of debtors, guarantors and other secured
parties to receive notices under Sections 9-504 and 9-505 of the Uniform
Commercial Code ("UCC") may not be waived prior to default, the failure to
comply with such notice requirements may bar or limit the recovery of any
deficiency remaining after the retention or sale of repossessed collateral, and
a secured party may be required to obtain, after appropriate notice and hearing,
a judgment or decree of a court of competent jurisdiction permitting the secured
party to enforce its rights to take possession and dispose of any of its
collateral.
(e) The rights of debtors, guarantors and other secured
parties to redeem collateral under Section 9-506 of the UCC may not be waived
prior to default.
(f) The duties to exercise reasonable care in the custody and
preservation of collateral in a secured party's possession and to deal with and
dispose of collateral in a commercially reasonable manner as required by the UCC
or other applicable law may not be disclaimed by agreement, waived or released
prior to default.
(g) Notwithstanding certain language of the Mortgage, the
Trustee may be limited to recovery of only reasonable expenses or attorneys'
fees and legal expenses with respect to the enforcement of the Mortgage and the
liens or security interests created under the Mortgage.
(h) We express no opinion as to the enforcement of
indemnification provisions in the Mortgage.
(i) Certain rights, remedies and waivers contained in the
Mortgage may be limited or rendered ineffective by applicable laws governing
such provisions, but such laws do not, in our opinion, render the Mortgage
invalid as a whole, or invalidate the obligations created thereunder or the
liens or security interests created thereby, and the Mortgage does contain the
customary remedial provisions which are normally used to allow the practical
realization of the rights and benefits afforded thereby.
(j) The provisions of the Atomic Energy Act of 1954, as
amended, and regulations promulgated thereunder, impose certain licensing and
other requirements upon persons (such as the Trustee or other purchasers
pursuant to the remedial provisions of the Mortgage) who seek to acquire,
possess or use nuclear production facilities.
Our opinions expressed above are limited to the laws of the
States of Iowa and New York and the federal laws of the United States of
America.
The foregoing opinions are being furnished to you solely for
your benefit and may not be relied upon by, nor may copies be delivered to, any
other person without pour prior written consent.
Very truly yours,
XXXXXX & XXXXXXX LLP
9
[Letterhead of Xxxxxx & Whitney LLP]
[Date]
Re: IES Utilities Inc.
$__________ Collateral Trust Bonds ___% Series Due ____
Ladies and Gentlemen:
This letter relates to the registration under the Securities
Act of 1933, as amended (the "Act"), and offering of $__________ in aggregate
principal amount of Collateral Trust Bonds, ___% Series Due ____ (the "Bonds")
of IES Utilities Inc., an Iowa corporation (the "Company"). The registration
statements of the Company on Form S-3 (File Nos. 33-62259 and 333-_____)
(collectively, the "Registration Statement") was filed in accordance with
procedures of the Securities and Exchange Commission (the "Commission")
permitting a delayed or continuous offering of securities pursuant thereto and,
if appropriate, a post-effective amendment or prospectus supplement that
provides information relating to the terms of the securities and the manner of
their distribution. The Bonds have been offered by the Prospectus dated
__________ (the "Prospectus"), as supplemented by the Prospectus Supplement
dated __________ (the "Prospectus Supplement"), which updates or supplements
certain information contained in the Prospectus. The Prospectus, as so
supplemented, does not necessarily contain a current description of the
Company's business and affairs since, pursuant to form S-3, it incorporates by
reference certain documents filed with the Commission which contain information
as of various dates.
In accordance with our understanding with you as to the scope
of our services under the circumstances applicable to the offering of the Bonds,
we reviewed the Registration Statement, the Prospectus and the Prospectus
Supplement, participated in the discussions with your representatives and those
of the Company, its counsel and its independent public accountants and advised
you as to the requirements of the Act and the applicable rules and regulations
thereunder. Between the date of the Prospectus Supplement and the date of
delivery of this letter, we participated in further discussions with your
representatives and those of the Company, its counsel and its independent public
accountants regarding the contents of certain portions of the Prospectus and the
Prospectus Supplement and certain related matters, and reviewed certificates of
certain officers of the Company, opinions addressed to you from counsel to the
Company and letters addressed to you from independent public accountants of the
Company.
On the basis of the information that was reviewed by us in the
course of the performance of the services referred to above, in our opinion (i)
the Registration Statement, as of its effective date, and the Prospectus, as
supplemented by the Prospectus Supplement as of the date of the Prospectus
Supplement, complied as to form in all material respects with the requirements
of the Act and the Trust Indenture Act of 1939, as amended, and the respective,
applicable rules and regulations thereunder (ii) the summaries of the terms of
the Mortgage, the Bonds, the Class "A" Bonds, the 0000 Xxxxxxxxx and the ISU
1923 Indenture (as such terms are defined in the Prospectus) contained in the
Registration Statement, the Prospectus and the Prospectus Supplement fairly
describe in all material respects the provisions thereof required to be
described in the registration statement form. Further, nothing that came to our
attention in the course of such review has caused us to believe that the
Registration Statement, on such effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus, as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement and as of the date and time of delivery of this letter,
contained or contains 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
light of the circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of
factual matters and the character of determinations involved in the registration
process are such, however, that we do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus Supplement. Also, we do
not express any opinion or belief as to the financial statements or other
financial data contained in the Registration Statement, the Prospectus or the
Prospectus Supplement, or as to the statement of the eligibility and
qualification of the Trustee under the Indenture under which the Bonds are being
issued.
This letter is furnished by us as counsel to you solely for
your benefit and may not be relied upon by, nor may copies be delivered to, any
other person without our prior written consent.
Very truly yours,
XXXXXX & XXXXXXX LLP
10
EXHIBIT D
Pursuant to subsection (e) of Section 8 of the Underwriting
Agreement, Xxxxxx Xxxxxxxx LLP shall furnish a letter to the Representative to
the effect that:
(1) They are independent certified public accountants with respect to
the Company within the meaning of the Securities Act and the applicable
published rules and regulations thereunder;
(2) In their opinion, the financial statements and schedules audited by
them and included or incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the related published rules and
regulations thereunder;
(3) On the basis of performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial Information, on the
latest available unaudited financial statements included or incorporated by
reference in the Registration Statement, a reading of the latest available
interim unaudited financial statements of the Company, the minutes of the
meetings of the Board of Directors, the Executive Committee thereof and the
stockholders of the Company, respectively, since the close of the most recent
audited fiscal year to a specified date not more than five business days prior
to the Closing Date, and inquiries of officials of the Company who have
responsibility for the respective company's financial and accounting matters (it
being understood that the foregoing procedures do not constitute an audit made
in accordance with generally accepted auditing standards and that they would not
necessarily reveal matters of significance with respect to the comments made in
such letter, and, accordingly, that Xxxxxx Xxxxxxxx LLP makes no representation
as to the sufficiency of such procedures for the several Underwriters'
purposes), nothing has come to their attention which caused them to believe that
(a) any unaudited financial statements included or
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act and the Exchange Act and the related published rules and regulations
thereunder;
(b) the audited and any unaudited selected financial
information and supplemental financial information and ratios of earnings to
fixed charges included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable disclosure
requirements of Regulation S-K promulgated under the Securities Act;
(c) any material modifications should be made to said
unaudited financial statements for them to be in conformity with generally
accepted accounting principles;
(d) for the period from ___________ to the date of the latest
available unaudited financial statements of the Company, there was any decrease
in operating revenues, operating income or net income as compared with the
corresponding period in the preceding year, except in all instances for
decreases which the Prospectus discloses have occurred or may occur or except as
set forth in such letter; and
(e) at a specified date not more than ______ days prior to the
Closing Date there was any change in the capital stock or long-term debt of the
Company, in each case as compared with amounts shown in the most recent balance
sheet incorporated by reference in the Prospectus, except in all instances for
changes or decreases which the Prospectus discloses have occurred or may occur,
for declarations of dividends, for the repayment or redemption of long-term
debt, for the amortization of premium or discount on long-term debt, for the
redemption or purchase of preferred stock for sinking fund purposes, for any
increases in long-term debt in respect of previously issued pollution control
revenue bonds, or for changes or decreases as set forth in such letter,
identifying the same and specifying the amount thereof.
(4) In addition to the audit referred to in their reports included or
incorporated by reference in the Prospectus and the inspection of minute books,
inquiries and other limited procedures referred to in paragraph 3 above, they
have carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information including certain pro forma
information specified by the Representative which are derived from the general
accounting records of the Company which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representative or in
documents incorporated by reference in the Prospectus specified by the
Representative and agreed to by the Company, and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and have found them to be in agreement.
