<PAGE> 1
As filed with the Securities and Exchange Commission on November 16, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WISCONSIN ELECTRIC POWER COMPANY
(Exact name of registrant as specified in its charter)
Wisconsin 39-0476280
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
231 West Michigan Street
P.O. Box 2046
Milwaukee, WI 53201
(414) 221-2590
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
J. G. Remmel, Chief Financial Officer
Wisconsin Electric Power Company
231 West Michigan Street
P.O. Box 2046
Milwaukee, WI 53201
(414) 221-2590
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Copies To:
BRUCE C. DAVIDSON, ESQ. GARY W. WOLF, ESQ.
Quarles & Brady Cahill Gordon & Reindel
411 East Wisconsin Avenue 80 Pine Street
Milwaukee, WI 53202 New York, New York 10005
(414) 277-5000 (212) 701-3600
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Approximate date of commencement of proposed sale to the public: At such time
or from time to time after the effective date of this registration statement
as the registrant shall determine in light of market conditions and other
factors.
<PAGE> 2
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ] ___________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ___________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
===================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of each class of to be offering price aggregate registration
securities to be registered registered per unit offering price fee
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
First Mortgage Bonds and (1)(2) (1) $500,000 (1) $100.00 (3)
Debt Securities
===================================================================================================
</TABLE>
(1) Not applicable pursuant to the Note following the Calculation of
Registration Fee Table and General Instruction II.D. to Form S-3, which
provide that only the maximum aggregate offering price for all classes of
securities to be registered need be specified.
(2) Pursuant to Rule 429, in addition to the $500,000 aggregate principal
amount of securities being registered by this registration statement,
the combined prospectus contained herein will also relate to $350,000,000
aggregate principal amount of securities that were registered by
Registration Statement No. 33-51749, for which a registration fee of
$120,690.50 was paid, and $49,500,000 aggregate principal amount of
securities that were registered by Registration Statement No. 33-49199,
for which a registration fee of $15,468.75 was paid.
(3) Calculated pursuant to Rule 457(o) at the statutory rate of 1/50th of 1
percent in effect at the time of filing.
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The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
<PAGE> 3
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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The prospectus contained herein is a combined prospectus relating also to
Registration Statement Nos. 33-51749 and 33-49199 pursuant to Rule 429 under
the Securities Act of 1933.
==============================================================================
<PAGE> 4
******************************************************************************
* Information contained herein is subject to completion or amendment. A *
* registration statement relating to these securities has been filed with *
* the Securities and Exchange Commission. These securities may not be sold *
* nor may offers to buy be accepted prior to the time the registration *
* statement becomes effective. This prospectus shall not constitute an *
* offer to sell or the solicitation of an offer to buy nor shall there be *
* any sale of these securities in any State in which such offer, solicita- *
* tion or sale would be unlawful prior to registration or qualification *
* under the securities laws of any such State. *
******************************************************************************
**************************************************
* SUBJECT TO COMPLETION, DATED NOVEMBER 16, 1995 *
**************************************************
PROSPECTUS
WISCONSIN ELECTRIC POWER COMPANY
First Mortgage Bonds
Debt Securities
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Wisconsin Electric Power Company (the "Company") may offer from time to time
up to $400,000,000 aggregate principal amount of its First Mortgage Bonds (the
"New Bonds") or its unsecured debt securities (the "Debt Securities") in one
or more series in amounts, at prices and upon terms to be determined at the
time or times of sale. The title, aggregate principal amount, maturity,
interest rate, payment dates, redemption provisions, sinking fund, if any, and
other terms of each series of the New Bonds or the Debt Securities will be set
forth in a supplement to this Prospectus (a "Prospectus Supplement").
The Company may sell New Bonds or Debt Securities to or through underwriters
or dealers and also may sell New Bonds or Debt Securities directly to other
purchasers or through agents. The Prospectus Supplement relating to each
series of New Bonds or Debt Securities will set forth the terms of the
offering of the New Bonds or Debt Securities, including, to the extent
applicable, the initial offering price, the proceeds to the Company, the
underwriting discounts or commissions, and any other discounts or concessions
to be allowed or re-allowed to dealers. The principal underwriters with
respect to each series sold to or through underwriters will be named in the
Prospectus Supplement relating to such series.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The date of this Prospectus is _______________, 1995.
<PAGE> 5
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in this Prospectus or
a Prospectus Supplement and, if given or made, such information or
representation must not be relied upon as having been authorized by the
Company or any underwriters. Neither this Prospectus nor any Prospectus
Supplement constitutes an offer to sell or a solicitation of an offer to buy
any of the securities offered hereby in any jurisdiction to any person to whom
it is unlawful to make such offer or solicitation in such jurisdiction. The
delivery of this Prospectus or any Prospectus Supplement at any time does not
imply that the information herein or therein is correct as of any time
subsequent to their respective dates.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, information statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports,
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington D.C. 20549, and at the Commission's
Regional Offices located at CitiCorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60621-2511 and 7 World Trade Center, Suite 1300, New
York, New York 10048 and copies of such material may also be obtained by mail
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington D.C. 20549, at prescribed rates. This Prospectus omits certain
information contained in the Registration Statement on Form S-3 (the
"Registration Statement") which the Company has filed with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), and to
which reference is hereby made for further information with respect to the
Company, the New Bonds and the Debt Securities.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to
the Exchange Act (File No. 1-1245) are incorporated in this Prospectus by
reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1994.
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995,
June 30, 1995 and September 30, 1995.
(c) Current Report on Form 8-K dated as of August 25, 1995.
All documents filed by the Company pursuant to sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering hereunder shall be deemed to be
incorporated by reference in this Prospectus and to be a part of this
Prospectus from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this Prospectus shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained in this Prospectus
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference in this Prospectus modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
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<PAGE> 6
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or oral
request of such person, a copy of any or all of the documents which are
incorporated herein by reference (other than exhibits not specifically
incorporated by reference into the text of such documents). Requests should
be directed to Wisconsin Electric Power Company, at its principal executive
office, 231 West Michigan Street, P.O. Box 2046, Milwaukee, Wisconsin 53201,
Attention: Ms. Ann Marie Brady, Secretary (telephone (800) 881-5882).
THE COMPANY
The Company is an operating public utility organized as a corporation under
the laws of the State of Wisconsin. The Company is a subsidiary of Wisconsin
Energy Corporation ("Wisconsin Energy"), which owns all of the Company's
Common Stock, and is an affiliated company to Wisconsin Natural Gas Company
("Wisconsin Natural"), the gas utility subsidiary of Wisconsin Energy. The
Company generates, transmits, distributes and sells electric energy in a
territory of approximately 12,000 square miles with an estimated population as
of December 31, 1994, of over 2,200,000 in southeastern (including the
Milwaukee area), east central and northern Wisconsin and in the Upper
Peninsula of Michigan. The Company also distributes and sells steam supplied
by one of its power plants to space heating and processing customers in
downtown Milwaukee. Wisconsin Energy is an exempt holding company by order of
the Commission under Section 3(a)(1) of the Public Utility Holding Company Act
of 1935, as amended, and accordingly is exempt from the provisions of that
Act, other than with respect to certain acquisitions of securities of a public
utility. The Company's principal executive offices are located at 231 West
Michigan Street, P.O. Box 2046, Milwaukee, Wisconsin 53201 (telephone (414)
221-2345). See "Recent Developments--Wisconsin Energy's Merger Agreement With
Northern States Power Company" and "--Merger With Wisconsin Natural Gas
Company" for discussions of pending business combinations.
USE OF PROCEEDS
The net proceeds from the sale of New Bonds and Debt Securities will be added
to the general funds of the Company and applied to the Company's continuing
construction program and other capital requirements or, depending on market
conditions, possible refunding of existing indebtedness. See note D to
"Certain Summary Financial Information." Short-term indebtedness outstanding
when net proceeds from the New Bonds and Debt Securities are received may be
reduced through application of such proceeds. Proceeds from the New Bonds and
Debt Securities may be temporarily invested pending disposition. Further
information concerning the use of proceeds from the sale of each series of the
New Bonds and Debt Securities will be set forth in the Prospectus Supplement
relating to such series.
CERTAIN SUMMARY FINANCIAL INFORMATION
The following summary financial information is qualified in its entirety by
the financial statements and other information included in the documents
incorporated by reference in this Prospectus.
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<PAGE> 7
Condensed Income and Related Information
of the Company for Certain Periods
Twelve Months
Year Ended December 31, Ended
------------------------------------------------------ September 30,
1990 1991 1992 1993 1994 (A) 1995 (B)
---------- ---------- ---------- ---------- ---------- ------------
(In thousands except ratios)
Operating
Revenues $1,220,171 $1,305,795 $1,311,816 $1,361,934 $1,417,843 $1,437,881
Operating
Income $ 226,199 $ 233,044 $ 219,996 $ 242,837 $ 240,558 $ 294,767
Net
Income $ 185,918 $ 181,569 $ 161,742 $ 177,925 $ 166,945 $ 217,765
Ratio of
Earnings
to Fixed
Charges (C) 4.3x 4.2x 3.7x 3.7x 3.5x 4.2x
Capitalization of the Company at September 30, 1995 and
as of that date as adjusted for the New Bonds and Debt Securities
As Adjusted (D)
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Amount Amount Percentage
---------- ---------- ----------
(In thousands)
Long-Term Debt - due after one year (E).. $1,157,682 $1,457,682 48.2%
Preferred Stock - redemption not required 30,451 30,451 1.0
Common Stock Equity ..................... 1,534,392 1,534,392 50.8
---------- ---------- -----
Total Capitalization ............... $2,722,525 $3,022,525 100.0%
========== ========== ======
Short-Term Debt (E)(F)................... $ 155,181 $ 50,000 ----
========== ========== ======
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(A) Income/earnings for the fiscal year ended December 31, 1994 includes a
pre-tax charge of $63.5 million for the Company's revitalization costs
recorded in the first quarter of 1994. The charge primarily reflects the
costs of severance and early retirement packages which are elements of a
revitalization program undertaken by the Company in 1993.
(B) See "Recent Developments--Financial Results for the Twelve Months Ended
September 30, 1995."
(C) For the purpose of computing this ratio, earnings consist of net income
(including total Allowances for Funds Used During Construction) plus
current and deferred income taxes, deferred investment tax credits and
fixed charges. Fixed charges consist of interest charges, amortization
of debt expenses, and amounts representing the interest factor of rental
expense.
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<PAGE> 8
(D) By order dated November 11, 1993, the Public Service Commission of
Wisconsin ("PSCW") authorized the issuance of up to $400 million
aggregate principal amount of debt securities (including New Bonds and
Debt Securities), subject to a condition that $100 million principal
amount of such securities may only be issued for the advance purchase or
refunding and/or provision for future refunding of currently outstanding
debt securities. In September and October 1995, the Company issued
$98.350 million aggregate principal amount of promissory notes in
connection with the refunding of an equal amount of outstanding debt
securities as authorized by the PSCW order. See "Recent Developments--
1995 Tax Exempt Debt Refinancings." Consequently, the as adjusted amounts
shown above reflect the net issuance of $300 million of additional
long-term debt, which is also the approximate maximum amount of the
securities covered by this Prospectus which may be issued without further
authorization. The Company believes that, through a combination of Net
Bondable Value of Property Additions Not Subject to an Unfunded Prior
Lien and the principal amount of unutilized retired Bonds, it will have
sufficient capacity under the Mortgage (as defined below) to issue all of
the debt securities authorized by the PSCW order as New Bonds, if so
desired. See "Description of New Bonds--Additional Bonds." The Company
has requested a two-year extension of the scheduled December 31, 1995
expiration date of the PSCW order, and of the related order of the
Michigan Public Service Commission, to December 31, 1997.
(E) Does not include $50.8 million of long-term debt due currently.
(F) The "as adjusted" amount includes the $50 million loan under the Short
Term Borrowing Agreement described in "Description of New Bonds--
Regarding the Trustee."
RECENT DEVELOPMENTS
FINANCIAL RESULTS FOR THE TWELVE MONTHS ENDED SEPTEMBER 30, 1995: Net income
for the twelve months ended September 30, 1995 increased $50.8 million
compared to the calendar year 1994 reflecting primarily the $63.5 million pre-
tax ($39 million after-tax) charge for the Company's revitalization costs
recorded in the first quarter of 1994 as described above. The results of
operations for the twelve months ended September 30, 1995 are not necessarily
indicative of the results which may be expected for the fiscal year ending
December 31, 1995 because of seasonal and other factors.
WISCONSIN ENERGY'S MERGER AGREEMENT WITH NORTHERN STATES POWER COMPANY: On
April 28, 1995, Wisconsin Energy, the Company's parent company, and Northern
States Power Company, a Minnesota corporation ("Northern States"), entered
into an Agreement and Plan of Merger, which was amended and restated as of
July 26, 1995 (the "Merger Agreement"). The Merger Agreement provides for a
strategic business combination involving Northern States and Wisconsin Energy
in a "merger-of-equals" transaction. As a result, Wisconsin Energy will
become a registered public utility holding company under the Public Utility
Holding Company Act of 1935, as amended, and will change its name to Primergy
Corporation ("Primergy"). Primergy will be the parent company of Northern
States (which, for regulatory reasons, will reincorporate in Wisconsin), the
Company (which will be renamed Wisconsin Energy Company) and the other
subsidiaries of Northern States and Wisconsin Energy. The business
combination is intended to be tax-free for income tax purposes and to be
accounted for as a "pooling of interests."
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<PAGE> 9
Under the terms of the Merger Agreement, based upon the capitalization of
Wisconsin Energy and Northern States at the time the Merger Agreement was
entered into, and the exchange ratio of 1.626 shares of Primergy common stock
for each share of Northern States common stock, the transaction would result
in the common shareholders of Northern States, as a group, receiving
approximately 50% of the common equity of Primergy in exchange for their
Northern States common stock and the common shareholders of Wisconsin Energy,
as a group, owning the other 50% of the common equity of Primergy. The
Company's outstanding Preferred Stock, which is publicly held, and Common
Stock, all of which will continue to be owned by Primergy, will be unchanged
in the transaction.
Wisconsin Energy Company will include the operations of Wisconsin Natural,
which is intended to be merged into the Company by January 1, 1996, as
previously planned. See "--Merger With Wisconsin Natural Gas Company."
Following the consummation of the transactions contemplated by the Merger
Agreement, the headquarters of Primergy will be in Minneapolis, Minnesota.
The headquarters of its two utility subsidiaries will remain in their current
locations, Northern States' in Minneapolis, Minnesota and Wisconsin Energy
Company's in Milwaukee, Wisconsin.
Northern States is predominantly an operating public utility engaged, along
with its most significant subsidiary, Northern States Power Company, a
Wisconsin corporation ("NSP-Wisconsin"), in the generation, transmission and
distribution of electricity throughout a 49,000 square mile service area and
the distribution of natural gas in approximately 148 communities within this
area. Northern States serves customers in Minnesota, North Dakota and South
Dakota. NSP-Wisconsin provides electric and natural gas utility service to
customers in Wisconsin and the Upper Peninsula of Michigan. Of the
approximately 3,000,000 people served by Northern States and NSP-Wisconsin,
the majority are concentrated in the Minneapolis-St. Paul, Minnesota
metropolitan area. Northern States has several other subsidiaries including
Viking Gas Transmission Company, a Delaware corporation, and NRG Energy, Inc.,
a Delaware corporation ("NRG"). NRG manages many of Northern States' non-
utility energy subsidiaries. It is expected that NSP-Wisconsin will be merged
into the Company (renamed Wisconsin Energy Company) and the remaining
subsidiaries of Northern States will become subsidiaries of Primergy. As a
result of such merger, the Company will assume NSP-Wisconsin's outstanding
indebtedness on the effective date of the merger. See "Description of New
Bonds--NSP-Wisconsin Mortgage." Pursuant to the Merger Agreement, Northern
States, contemporaneously with its reincorporation in Wisconsin, will acquire
certain utility assets from NSP-Wisconsin.
Wisconsin Energy and Northern States recognize that the divestiture of their
existing gas operations and certain non-utility operations is a possibility
under the new registered holding company structure contemplated by the Merger
Agreement, but will seek approval from the Commission to maintain such
businesses. If divestiture is ultimately required, the Commission has
historically allowed companies sufficient time to accomplish divestitures in a
manner that protects shareholder value.
The Merger Agreement is subject to various conditions, including the approval
of various regulatory agencies. On July 10, 1995 Wisconsin Energy and
Northern States filed an application and supporting testimony with the Federal
Energy Regulatory Commission ("FERC") seeking approval of the proposed
business combination. FERC has received a number of protests about and
requests for hearings on the application to which Wisconsin Energy and
Northern States have responded. The matter is pending. Applications for
approval of the mergers contemplated by the Merger Agreement and related
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<PAGE> 10
transactions, including, in the case of certain commissions, the issuance of
securities in connection therewith, were filed in early August, 1995 with the
Minnesota, Wisconsin, North Dakota and Michigan utility commissions. An
application for disclaimer of jurisdiction was filed with the South Dakota
utility commission concurrently with the other state applications. The PSCW
has determined that it needs a full review of the Company's rates for the 1997
test year in connection with the consideration of the application for approval
of the mergers contemplated by the Merger Agreement and related transactions.
The Merger Agreement and certain related matters were approved by shareholders
of Wisconsin Energy and Northern States at their respective meetings of
shareholders held on September 13, 1995. Applications for license amendments
and approvals relating to the proposed merger were filed with the Nuclear
Regulatory Commission in late October 1995. Subject to obtaining all
requisite approvals, Wisconsin Energy and Northern States anticipate
completing this business combination late in 1996.
Further information concerning the Merger Agreement and the transactions
contemplated thereby is contained in the documents incorporated herein by
reference. See "Incorporation Of Certain Documents By Reference." Detailed
information with respect thereto is contained in the Joint Proxy
Statement/Prospectus dated August 7, 1995 (contained in Wisconsin Energy's
Registration Statement on Form S-4, Registration No. 33-61619) relating to the
meetings of the shareholders of Northern States and Wisconsin Energy to vote
on the Merger Agreement and related matters. Pro forma financial information
related to the Company's pending business combinations with Wisconsin Natural
and NSP-Wisconsin is included in the Company's Current Report on Form 8-K
dated as of August 25, 1995, and the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1995, which are incorporated by reference
in this Prospectus. Information in or incorporated in this Prospectus with
respect to Northern States is based on or taken from public disclosures made
by Northern States, its subsidiaries, and the NSP-Wisconsin Mortgage defined
below.
MERGER WITH WISCONSIN NATURAL GAS COMPANY: Wisconsin Energy intends to merge
Wisconsin Natural, a wholly-owned subsidiary of Wisconsin Energy, into the
Company to form a single combined utility subsidiary. All required regulatory
approvals for the merger of Wisconsin Natural and the Company have been
received. Completion of the planned Wisconsin Natural merger with the Company
is expected to occur by January 1, 1996. Wisconsin Natural purchases,
distributes, and sells natural gas to retail customers and transports
customer-owned gas in three distinct service areas in Wisconsin: west and
south of the City of Milwaukee; the Appleton area; and the Prairie du Chien
area. Wisconsin Natural's service territory has an estimated population of
over 1,100,000 and is largely within the electric service area of the Company.
As a result of the merger, the Company will assume Wisconsin Natural's
outstanding indebtedness on the effective date of the merger. See
"Description of New Bonds--Wisconsin Natural Debt Indentures."
1995 TAX EXEMPT DEBT REFINANCINGS: On August 29, 1995, the Company called for
optional redemption $98.350 million aggregate principal amount of fixed rate
tax exempt bonds issued by three political jurisdictions on the Company's
behalf that were secured by issues of the Company's First Mortgage Bonds with
terms corresponding to the tax exempt bonds called for redemption. During
September and October 1995, the three political jurisdictions issued $98.350
million aggregate principal amount of new tax exempt bonds on behalf of the
Company, collateralized by unsecured variable rate promissory notes issued by
the Company with terms corresponding to the respective issues of the refunding
tax exempt bonds, the proceeds of which were used to finance such optional
redemptions. The First Mortgage Bonds which collateralized the redeemed tax
exempt bonds have also been cancelled.
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<PAGE> 11
DESCRIPTION OF NEW BONDS
The New Bonds will be issued under the Mortgage and Deed of Trust dated
October 28, 1938 between the Company and Firstar Trust Company (formerly First
Wisconsin Trust Company), as Trustee, as amended and supplemented and as to be
supplemented by one or more Supplemental Indentures creating series of New
Bonds (collectively, the "Mortgage"). At September 30, 1995, the aggregate
principal amount of Bonds outstanding under the Mortgage was $1,024,443,000.
The following statements about the Mortgage and the New Bonds are summary
outlines of provisions contained therein, do not purport to be complete and
are qualified by reference thereto. The specific references below are to
provisions of the Mortgage unless otherwise indicated. Certain terms used
below are defined in the Mortgage. The term "Bonds" refers to Bonds issued
under the Mortgage, as amended and supplemented from time to time. Copies of
the documents constituting the Mortgage are filed as exhibits to the
Registration Statement or documents incorporated by reference in this
Prospectus.
THE NEW BONDS. The New Bonds of any series will be issued in aggregate
principal amount, will mature and bear interest, and will be redeemable (if
issued with redemption provisions) at the option of the Company, at the prices
and on the other terms as to be set forth in the Prospectus Supplement
relating to such series. The Prospectus Supplement will also indicate whether
the New Bonds of such series will be originally issued solely in book-entry
form as described under "Book-Entry Only System" below.
The New Bonds will be available only in fully registered form, without
coupons, in the denomination of $1,000 or any multiple thereof. The Company
will not impose charges for exchanges of New Bonds.
Principal and interest on the New Bonds will be payable in lawful money of the
United States, at the agency of the Company in the City of Milwaukee;
provided, however, at the option of the Company, payment of interest on any
New Bond may be made by check, mailed to the person entitled thereto at such
address as shall appear on the transfer register, or as otherwise may be
provided for in the Supplemental Indenture creating a series of New Bonds.
The interest paid on a New Bond on any interest payment date will, with
certain exceptions, be payable to the person in whose name such New Bond is
registered at the close of business on the last business day which is more
than ten days prior to such date.
SECURITY. In the opinion of Walter T. Woelfle, Director-Legal Services
Department of the Company, the New Bonds will be secured, together with all
other Bonds now or hereafter issued under the Mortgage, by a valid and direct
first lien (subject to certain leases, Permitted Liens and other minor
matters) on substantially all the properties and franchises of the Company,
other than cash, accounts receivable and other liquid assets, securities not
specifically pledged, and electric energy, materials, supplies or other
products produced or purchased by the Company for use, sale or lease. At
September 30, 1995, the gross amount (before depreciation) at which the
properties subject to the lien of the Mortgage were carried in the Company's
utility plant accounts was approximately $4,569,541,000. The Mortgage
contains provisions subjecting to the lien thereof after-acquired property
(other than property of types excepted as indicated above). (Granting Clauses
and Excepted Property)
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<PAGE> 12
ADDITIONAL BONDS. Additional Bonds ranking equally with the New Bonds may be
issued for an aggregate principal amount up to (i) 60% of the amount of Net
Bondable Value of Property Additions Not Subject to an Unfunded Prior Lien
which the Company elects to use for such purpose, (ii) the amount of cash
which the Company deposits with the Trustee for such purpose, and (iii) the
previously unutilized amount of Bonds retired or to be retired (except out of
trust moneys). (Art. III, Sections 4, 5 and 6) Cash so deposited may be
withdrawn upon the bases and up to the amounts indicated in the foregoing
clauses (i) and (iii). (Art. VIII, Section 3)
Additional Bonds may not be issued unless Net Earnings of the Company
Available for Interest for a specified twelve-month period shall have been at
least equal to the greater of twice the annual interest charges on, or 10% of
the principal amount of, all Bonds and Prior Lien Bonds then outstanding and
then being issued, unless (i) such Additional Bonds are being issued to refund
Bonds or to refund a Prior Lien which simultaneously becomes a Funded Prior
Lien on Property Additions used for such issuance, and (ii) application to
issue Additional Bonds for either of these refunding purposes is made within
two years prior to the maturity of the Bonds or Prior Lien Bonds being
refunded. (Art. III, Sections 3, 4(h) and 6(b); Fifth Supp. Ind., Art. VI)
The New Bonds are to be issued against 60% of the Net Bondable Value of
Property Additions Not Subject to an Unfunded Prior Lien or the principal
amount of unutilized retired Bonds. Before reflecting the assumed issuance of
any of the New Bonds, as of September 30, 1995, the amount of such Property
Additions available for issuance of Bonds under the Mortgage was approximately
$529,762,000, sufficient under this 60% provision for the issuance of
approximately $317,857,000 principal amount of Additional Bonds. In addition,
approximately $1,146,407,000 of Additional Bonds could be issued under the
Mortgage on the basis of Bonds retired on or before that date.
Prior Lien Bonds secured by an Unfunded Prior Lien may be issued under the
circumstances and subject to the limitations provided in the Mortgage. (Art.
IV, Section 16)
DIVIDEND RESTRICTION. So long as any New Bonds are outstanding, the Company
may not declare any dividend on its Common Stock (other than in Common Stock)
or make any other distribution on, or acquire for value any shares of its
Common Stock (except in exchange for Common Stock), if after giving effect
thereto the aggregate of all such dividends, distributions or acquisitions
during the period commencing October 1, 1995 and ending on the last day of the
third month preceding the month in which any such dividend, distribution or
acquisition is paid or made shall exceed the sum of $1,000,935,697 plus the
net income of the Company during such period applicable to its Common Stock.
(Art. IV or other designated article of each Supplemental Indenture creating
series of New Bonds)
DEFAULT. Events of default under the Mortgage are: (i) default in the
payment of the principal of any Bond; (ii) default in the payment of any
installment of interest on any Bond or in the payment or satisfaction of any
sinking, improvement, maintenance or analogous fund and the continuation
thereof for a period of 30 days; (iii) default by the Company in the
performance or observance of any of the covenants, agreements or conditions in
the Mortgage or Bonds and the continuation thereof for 60 days after written
notice from the Trustee or the holders of 15% in amount of the outstanding
Bonds; (iv) default in the payment of principal of or interest on any Prior
Lien Bonds and the continuation thereof beyond the period of grace in such
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Bonds; (v) certain events in bankruptcy, assignments for the benefit of
creditors and establishments of receiverships or similar arrangements; (vi)
failure to discharge or provide for the discharge of a final judgment in
excess of $100,000 within 30 days of the rendering thereof or affirmance
thereof on appeal; and (vii) termination of the Company's corporate franchise
without transferring its assets before or within 120 days after such
termination to a successor corporation. (Art. IX, Section 1) The Company is
required to furnish the Trustee, not less than annually, a brief certificate
as to the Company's compliance with all conditions and covenants under the
Mortgage.
In case of an event of default, either the Trustee or the holders of 25% in
amount of the outstanding Bonds may declare the principal of all Bonds due and
payable, but the holders of a majority may, under certain circumstances,
rescind such acceleration if such event of default has been cured. No holder
of Bonds may enforce the lien of the Mortgage unless such holder has given the
Trustee written notice of default and unless the holders of 25% in amount of
the outstanding Bonds have requested the Trustee in writing to act, such
holder or holders have offered the Trustee security and indemnity satisfactory
to it and the Trustee has not acted within a reasonable time. (Art. IX,
Sections 1 and 12)
MODIFICATION OF MORTGAGE. With the consent of holders of 66-2/3% in amount of
the Bonds entitled to vote then outstanding, and holders of 66-2/3% in amount
of the Bonds of each series entitled to vote then outstanding and affected if
less than all of such series are affected, the Mortgage may be changed, except
to affect the terms of payment of the principal or interest on any Bond or to
reduce the percentage in amount of Bonds required to effect any change. (Art.
XV, Section 6, as amended by Twenty-Second Supp. Ind., effective October 5,
1995).
Certain additional modifications of the Mortgage set forth in the Twenty-
Second Supplemental Indenture were made effective by a resolution adopted at a
meeting of Bondholders called at the Company's request and held on October 23,
1992, following approval by the Board of Directors of the Company on
October 28, 1992. The amendments, in general terms: amend the definition of
"Board of Directors" to include a Committee of the Board; broaden the
definition of "Property Additions" by adding the phrase "gas (either natural
or artificial)" so that such definition refers in part to property "used or
useful for the business of generating, manufacturing, transmitting,
distributing or supplying electricity, gas (either natural or artificial) or
steam," by deleting a requirement that the properties be located in, or
directly connected with properties located in, Wisconsin, by including certain
leasehold interests in electric and gas plants and other properties, and by
deleting an exclusion for gas properties and adding a definition of
transportation properties; require certain opinions of counsel to refer to
pipelines; increase to $250,000 the amount above which certain insured losses
must be payable to the Trustee; permit the issuance of certain prior lien
bonds secured by purchase money mortgage on certain conditions; and permit
Bondholders' action by written consent.
Certain further modifications of the Mortgage set forth in the Twenty-Sixth
Supplemental Indenture became effective on October 5, 1995 when the last Bonds
of any series created prior to January 15, 1988 were redeemed and ceased to be
outstanding. (Twenty-Sixth Supp. Ind., Art. VI) These amendments provide
more flexibility in setting forth in an engineer's certificate the time period
during which gross property additions were purchased, constructed or otherwise
acquired by the Company in connection with a Company request to withdraw
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monies held by the Trustee, and alter the ratio used to determine the dollar
amount of funds that the Company may request the Trustee to pay over to the
Company on the basis of refundable Bonds.
Certain additional modifications of the Mortgage set forth in Art. VII of the
Thirty-Third Supplemental Indenture will become effective upon the earlier of
the date when no Bonds of any series created prior to October 1, 1992 remain
outstanding or the date such modifications are consented to by Bondholders.
Such modifications will, in general, (i) allow for the issuance of Additional
Bonds for an aggregate principal amount of up to 70% of the amount of Net
Bondable Value of Property Addition Not Subject to an Unfunded Prior Lien, as
compared with the limitation of 60% now set forth in the Mortgage, (ii) permit
the issuance of Prior Lien Bonds for an aggregate principal amount of up to
70% of the amount of Net Bondable Value of Property Additions Subject to an
Unfunded Prior Lien, as compared with the limitation of 60% now set forth in
the Mortgage, (iii) allow the Company to acquire property subject to any
Unfunded Prior Lien, if at the time of acquisition the principal amount of
outstanding indebtedness subject to such lien or liens does not exceed 70% (as
compared to 60% currently) of the lesser of the cost or fair value to the
Company of the property of the nature of Property Additions subject to such
lien or liens, (iv) amend the definitions of "Net Bondable Value of Property
Additions Not Subject to an Unfunded Prior Lien" and "Net Bondable Value of
Property Additions Subject to an Unfunded Prior Lien" by changing the ratio to
be applied to certain dollar amounts in each definition's calculation from
ten-sixths to ten-sevenths, (v) provide that, in the case of a proposed merger
in which the Company would not be the survivor, such a transaction may not
occur if the principal amount of indebtedness outstanding immediately after
the merger subject to a lien or liens prior to that of the Company's exceeds
70% (as compared to 60% currently) of the lesser of cost or fair value of the
property of the nature of Property Additions then owned by the survivor, and
(vi) make certain conforming and other changes. Each holder of a New Bond
shall be deemed to have consented to all such modifications. An aggregate of
$303,443,000 principal amount of Bonds of series created prior to October 1,
1992 were outstanding as of October 5, 1995.
WISCONSIN NATURAL DEBT INDENTURES
In conjunction with the anticipated merger of Wisconsin Natural with and into
the Company (see "Recent Developments--Merger With Wisconsin Natural Gas
Company"), the Company will assume Wisconsin Natural's outstanding
indebtedness under, and agree to abide by all of the applicable terms and
conditions of, the Mortgage and Deed of Trust dated June 1, 1950 between
Wisconsin Natural and Firstar Trust Company, as Trustee, as amended and
supplemented (the "Wisconsin Natural Mortgage"), and the Debt Securities
Indenture dated as of September 1, 1992 between Wisconsin Natural and Firstar
Trust Company, as Trustee, as supplemented (the "Wisconsin Natural DSI"). At
September 30, 1995, the aggregate principal amounts of First Mortgage Bonds
outstanding under the Wisconsin Natural Mortgage and Debentures outstanding
under the Wisconsin Natural DSI were $10,000,000 and $57,000,000,
respectively. After such merger, the lien of the Wisconsin Natural Mortgage
will continue to constitute a prior lien upon all the properties and
franchises acquired by the Company that were subject to the lien of the
Wisconsin Natural Mortgage immediately prior to the merger, and upon all
additions, extensions, improvements, repairs and replacements to the
properties included in Wisconsin Natural's trust estate immediately prior to
the merger. The lien of the Wisconsin Natural Mortgage will not extend to the
other assets of the Company after the merger unless the Company issues
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additional First Mortgage Bonds or exercises certain other privileges under
the Wisconsin Natural Mortgage. The Company does not expect to take any
action which would extend the lien of the Wisconsin Natural Mortgage to
Company property not acquired from Wisconsin Natural in the merger. Under the
terms of the Wisconsin Natural DSI, which does not currently subject any
property to a lien, certain restrictive covenants setting forth limitations on
the existence and creation of liens, the issuance of First Mortgage Bonds and
the entering into sale and leaseback transactions will terminate upon
consummation of the merger with the Company.
NSP-WISCONSIN MORTGAGE
In conjunction with the anticipated merger of NSP-Wisconsin into the Company
(see "Recent Developments--Wisconsin Energy's Merger Agreement With Northern
States Power Company"), the Company will assume NSP-Wisconsin's outstanding
indebtedness under, and agree to abide by all of the applicable terms and
conditions of, the Supplemental and Restated Trust Indenture dated March 1,
1991 between NSP-Wisconsin and Firstar Trust Company, as Trustee, as
supplemented (the "NSP-Wisconsin Mortgage"). At September 30, 1995, the
aggregate principal amount of First Mortgage Bonds outstanding under the NSP-
Wisconsin Mortgage was $194,635,000. After such merger, the lien of the NSP-
Wisconsin Mortgage will continue to constitute a prior lien upon all the
properties and franchises acquired by the Company that were subject to the
lien of the NSP-Wisconsin Mortgage immediately prior to the merger, and upon
all extensions and additions appurtenant to the property acquired from NSP-
Wisconsin, as well as such franchises, repairs and additional properties as
may be acquired by the Company pursuant to covenants contained in the NSP-
Wisconsin Mortgage to maintain, renew and preserve the franchises covered by
the NSP-Wisconsin Mortgage and to maintain such mortgaged and pledged property
in adequate repair, working order and condition. The lien of the NSP-
Wisconsin Mortgage will not extend to other assets of the Company after the
merger unless the Company issues additional First Mortgage Bonds under the
NSP-Wisconsin Mortgage. The Company does not expect to issue additional First
Mortgage Bonds under the NSP-Wisconsin Mortgage after consummation of the
merger.
REGARDING THE TRUSTEE. The Trustee provides services for the Company and
certain affiliates, including its parent, Wisconsin Energy, and Wisconsin
Energy's other utility subsidiary, Wisconsin Natural, as a depository of
funds, registrar, trustee under other indentures and similar services. The
Trustee or certain affiliates of the Trustee may make loans to the Company
from time to time. The Company and the Trustee have entered into a Short Term
Borrowing Agreement providing for the Trustee to make loans to the Company
from time to time. The aggregate principal balance outstanding at any time on
all loans made pursuant to the Short Term Borrowing Agreement may not exceed
$50,000,000. As of September 30, 1995, a loan for $50,000,000 was outstanding
under the Short Term Borrowing Agreement. Firstar Trust Company is also the
trustee under the Indenture (as defined below) providing for the Debt
Securities. See "Description of Debt Securities--Regarding the Trustee." The
Trustee also presently acts as trustee for the Company's and Wisconsin
Natural's master pension trust, the decommissioning trust fund for the
Company's Point Beach Nuclear Plant and certain other employee benefit trusts.
The Trustee also serves as trustee under the Wisconsin Natural Mortgage and
NSP-Wisconsin Mortgage. Geneva B. Johnson, a director of the Company and
Wisconsin Energy, is also a director of an affiliate of the Trustee.
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The holders of a majority of the outstanding Bonds have the right to direct
the time, method and place of conducting any proceeding for any remedy open to
the Trustee and of exercising any power or trust conferred upon the Trustee
under the Mortgage. (Art. IX, Section 11) Subject to the duty of the Trustee
to act with the required standard of care during a default, the Trustee is
under no obligation to exercise any trust or power of the Mortgage at the
request, order or direction of any of the Bondholders unless such Bondholders
provide security or indemnity satisfactory to the Trustee against any costs,
expenses and liabilities to be incurred. (Art. XIII, Sections 1(d) and 2)
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued in one or more series under an Indenture
(the "Indenture") between the Company and Firstar Trust Company, as Trustee,
the form of which is filed as an exhibit to the Registration Statement. The
following summaries of certain provisions of the Indenture do not purport to
be complete and are qualified in their entirety by express reference to the
Indenture and the Securities Resolutions or the indentures supplemental
thereto (copies of which have been or will be filed with the Commission).
Certain terms defined in the Indenture are used in this summary without
definition.
The term "Securities," as used under this caption, refers to all Securities
issued under the Indenture and includes the Debt Securities.
GENERAL. The Indenture will not limit the amount of Securities that can be
issued thereunder and provides that the Securities may be issued from time to
time in one or more series pursuant to the terms of one or more Securities
Resolutions or supplemental indentures creating such series. As of the date
of this Prospectus, there were no Securities outstanding under the Indenture.
The Debt Securities will be unsecured and will rank on a parity with all other
unsecured and unsubordinated debt of the Company. Although the Indenture
provides for the possible issuance of Securities in other forms or currencies,
the only Securities covered by this Prospectus will be Securities denominated
in U.S. dollars in registered form without coupons.
Substantially all of the fixed properties and franchises of the Company are
subject to the lien of the Mortgage under which the Company's First Mortgage
Bonds are outstanding. See "Description of New Bonds."
TERMS. Reference is made to the Prospectus Supplement for the following
terms, if applicable, of the Securities offered thereby: (1) the designation,
aggregate principal amount, currency or composite currency and denominations;
(2) the price at which such Securities will be issued and, if an index formula
or other method is used, the method for determining amounts of principal or
interest; (3) the maturity date and other dates, if any, on which principal
will be payable; (4) the interest rate (which may be fixed or variable), if
any; (5) the date or dates from which interest will accrue and on which
interest will be payable, and the record dates for the payment of interest;
(6) the manner of paying principal and interest; (7) the place or places where
principal and interest will be payable; (8) the terms of any mandatory or
optional redemption by the Company; (9) the terms of any redemption at the
option of Holders; (10) whether such Securities are to be issuable as
registered Securities, bearer Securities, or both, and whether and upon what
terms any registered Securities may be exchanged for bearer Securities and
vice versa; (11) whether such Securities are to be represented in whole or in
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part by a Security in global form and, if so, the terms thereof and the
identity of the depositary ("Depositary") for any global Security; (12) any
tax indemnity provisions; (13) if the Securities provide that payments of
principal or interest may be made in a currency other than that in which
Securities are denominated, the manner for determining such payments; (14) the
portion of principal payable upon acceleration of a Discounted Security (as
defined below); (15) whether and upon what terms Securities may be defeased;
(16) whether the covenant referred to below under "Certain Covenants--
Limitations on Liens" applies, and any events of default or restrictive
covenants in addition to or in lieu of those set forth in the Indenture; (17)
provisions for electronic issuance of Securities or for Securities in
uncertificated form; and (18) any additional provisions or other special terms
not inconsistent with the provisions of the Indenture, including any terms
that may be required or advisable under United States or other applicable laws
or regulations, or advisable in connection with the marketing of the
Securities. (Section 2.01)
The Securities of a series may be issued in whole or in part in the form of
one or more global Securities that will be deposited with, or on behalf of, a
Depositary identified in the Prospectus Supplement relating to the series.
Global Securities may be issued in registered, bearer or uncertificated form
and in either temporary or permanent form. Unless and until it is exchanged
in whole or in part for Securities in definitive form, a global Security may
not be transferred except as a whole by the Depositary to a nominee or a
successor depositary. (Section 2.12) The specific terms of the depositary
arrangement with respect to any Securities of a series will be described in
the Prospectus Supplement relating to the series.
Securities of any series may be issued as registered Securities, bearer
Securities or uncertificated Securities, as specified in the terms of the
series. (Section 2.01) Unless otherwise indicated in the Prospectus
Supplement, registered Securities will be issued in denominations of $1,000
and whole multiples thereof and bearer Securities will be issued in
denominations of $5,000 and whole multiples thereof. One or more global
Securities will be issued in a denomination or aggregate denominations equal
to the aggregate principal amount of outstanding Securities of the series to
be represented by such global Security or Securities. (Section 2.12)
In connection with its original issuance, no bearer Security will be offered,
sold, resold, or mailed or otherwise delivered to any location in the United
States and a bearer Security in definitive form may be delivered in connection
with its original issuance only if the person entitled to receive the bearer
Security furnishes certification as described in United States Treasury
regulation section 1.163-5(c)(2)(i)(D)(3). (Section 2.04)
For purposes of this Prospectus, unless otherwise indicated, "United States"
means the United States of America (including the States and the District of
Columbia), its territories and possessions and all other areas subject to its
jurisdiction. "United States person" means a citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or a political subdivision
thereof or any estate or trust the income of which is subject to United States
federal income taxation regardless of its source. Any special United States
federal income tax considerations applicable to bearer Securities will be
described in the Prospectus Supplement relating thereto.
To the extent set forth in the Prospectus Supplement, except in special
circumstances set forth in the Indenture, principal and interest on bearer
Securities will be payable only upon surrender of bearer Securities and
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coupons at a paying agency of the Company located outside of the United
States. During any period thereafter for which it is necessary in order to
conform to United States tax law or regulations, the Company will maintain a
paying agent outside the United States to which the bearer Securities and
coupons may be presented for payment and will provide the necessary funds
therefor to the paying agent upon reasonable notice. (Section 2.04)
Registration of transfer of registered Securities may be requested upon
surrender thereof at any agency of the Company maintained for that purpose and
upon fulfillment of all other requirements of the agent. (Sections 2.03 and
2.07) Bearer Securities and the coupons related thereto will be transferable
by delivery.
Securities may be issued under the Indenture as Discounted Securities to be
offered and sold at a substantial discount from the principal amount thereof.
Special United States federal income tax and other considerations applicable
thereto will be described in the Prospectus Supplement relating to such
Discounted Securities. "Discounted Security" means a Security where the
amount of principal due upon acceleration is less than the stated principal
amount.
CERTAIN COVENANTS. The Debt Securities will not be secured by any properties
or assets and will represent unsecured debt of the Company. The Indenture
does not limit the amount of unsecured debt that the Company can incur. As
indicated under "General" above, substantially all of the fixed properties and
franchises of the Company are subject to the lien of the Mortgage securing the
Company's First Mortgage Bonds.
As discussed below, the Indenture includes certain limitations on the
Company's ability to create liens. Such limitations will apply if the
Securities Resolution establishing the terms of a series so provides. If
applicable, the limitations are subject to a number of qualifications and
exceptions. The Indenture does not limit the Company's ability to issue
additional First Mortgage Bonds or to enter into sale and leaseback
transactions.
The covenant described below will apply if so indicated in a Prospectus
Supplement. Any obligations thereunder are subject to termination upon
defeasance. See "Legal Defeasance and Covenant Defeasance" below. Also,
unless otherwise indicated in a Prospectus Supplement, such covenant, if
applicable, does not afford holders of the Securities protection in the event
of a highly leveraged or other transaction involving the Company that may
adversely affect holders of the Securities.
LIMITATIONS ON LIENS. The Indenture provides that, so long as there
remain outstanding any Securities of any series to which this limitation
applies, and subject to termination as referred to above, the Company will
not, and will not permit any Subsidiary to, create or suffer to be created or
to exist any mortgage, pledge, security interest, or other lien (collectively,
"Lien") on any of its properties or assets now owned or hereafter acquired to
secure any indebtedness, without making effective provision whereby the
Securities of such series shall be equally and ratably secured. (At the date
of this Prospectus, the Company had no Subsidiaries.) This restriction does
not apply to or prevent the creation or existence of (1) the Mortgage securing
the Company's First Mortgage Bonds or any indenture supplemental thereto
subjecting any property to the Lien thereof or confirming the Lien thereof
upon any property, whether owned before or acquired after the date of the
Indenture; (2) Liens on property existing at the time of acquisition or
construction of such property (or created within one year after completion
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<PAGE> 19
of such acquisition or construction), whether by purchase, merger,
construction or otherwise (or on the property of a Subsidiary at the date it
became a Subsidiary), or to secure the payment of all or any part of the
purchase price or construction cost thereof, including the extension of any
such Liens to repairs, renewals, replacements, substitutions, betterments,
additions, extensions and improvements then or thereafter made on the property
subject thereto; (3) any extensions, renewals or replacements (or successive
extensions, renewals or replacements), in whole or in part, of Liens permitted
by the foregoing clauses (1) and (2); (4) the pledge of any bonds or other
securities at any time issued under any of the Liens permitted by clauses (1),
(2) or (3) above; or (5) Permitted Encumbrances. (Section 4.07)
"Permitted Encumbrances" include, among other items, (a) the pledge or
assignment in the ordinary course of business of electricity, gas (either
natural or artificial) or steam, accounts receivable or customers' installment
paper, (b) Liens affixing to property of the Company or a Subsidiary at the
time a Person consolidates with or merges into, or transfers all or
substantially all of its assets to, the Company or a Subsidiary, provided that
in the opinion of the Board of Directors of the Company or Company management
(evidenced by a certified Board resolution or an Officers' Certificate
delivered to the Trustee) the property acquired pursuant to the consolidation,
merger or asset transfer is adequate security for the Lien; and (c) Liens or
encumbrances not otherwise permitted if, at the incurrence of and after giving
effect thereto, the aggregate of all obligations of the Company and its
Subsidiaries secured thereby does not exceed 10% of Tangible Net Worth.
"Tangible Net Worth" means (i) common stockholders' equity appearing on the
most recent balance sheet of the Company (or consolidated balance sheet of the
Company and its Subsidiaries if the Company then has one or more consolidated
Subsidiaries) prepared in accordance with generally accepted accounting
principles less (ii) intangible assets (excluding intangible assets
recoverable through rates as prescribed by applicable regulatory authorities).
(Section 4.06)
Further, this restriction will not apply to or prevent the creation or
existence of leases made, or existing on property acquired, in the ordinary
course of business. (Section 4.07)
OTHER COVENANTS. Any other restrictive covenants which may apply to a
particular series of Securities will be described in the Prospectus
Supplemental relating thereto.
SUCCESSOR OBLIGOR. The Indenture provides that, unless otherwise specified in
the Securities Resolution establishing a series of Securities, the Company
will not consolidate with or merge into, or transfer all or substantially all
of its assets to, any person, unless (1) the Person is organized under the
laws of the United States or a State thereof; (2) the Person assumes by
supplemental indenture all the obligations of the Company under the Indenture,
the Securities and any coupons; and (3) immediately after the transaction no
Default (as defined) exists. The successor will be substituted for the
Company, and thereafter all obligations of the Company under the Indenture,
the Securities and any coupons shall terminate. (Section 5.01)
EXCHANGE OF SECURITIES. Registered Securities may be exchanged for an equal
aggregate principal amount of registered Securities of the same series and
date of maturity in such authorized denominations as may be requested upon
surrender of the registered Securities at an agency of the Company maintained
for such purpose and upon fulfillment of all other requirements of the agent.
(Section 2.07)
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To the extent permitted by the terms of a series of Securities authorized to
be issued in registered form and bearer form, bearer Securities may be
exchanged for an equal aggregate principal amount of registered or bearer
Securities of the same series and date of maturity in such authorized
denominations as may be requested upon surrender of the bearer Securities with
all unpaid coupons relating thereto (except as may otherwise be provided in
the Securities) at an agency of the Company maintained for such purpose and
upon fulfillment of all other requirements of the agent. (Section 2.07) As of
the date of this Prospectus, it is expected that the terms of a series of
Securities will not permit registered Securities to be exchanged for bearer
Securities.
DEFAULTS AND REMEDIES. Unless the Securities Resolution establishing the
series otherwise provides, an "Event of Default" with respect to a series of
Securities will occur if:
(1) the Company defaults in any payment of interest on any Securities of
the series when the same becomes due and payable and the Default
continues for a period of 60 days;
(2) the Company defaults in the payment of the principal of any Securities
of the series when the same becomes due and payable at maturity or upon
redemption, acceleration or otherwise;
(3) the Company defaults in the payment or satisfaction of any sinking
fund obligation with respect to any Securities of a series as required
by the Securities Resolution establishing such series and the Default
continues for a period of 60 days;
(4) the Company defaults in the performance of any of its other agreements
applicable to the series and the Default continues for 90 days
after the notice specified below;
(5) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian for it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian for the Company or for all or substantially
all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days; or
(7) there occurs any other Event of Default provided for in the series.
(Section 6.01)
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
(Section 6.01)
"Default" means any event which is, or after notice or passage of time would
be, an Event of Default. A Default under subparagraph (4) above is not an
Event of Default until the Trustee or the Holders of at least 25% in principal
amount of the series notify the Company of the Default and the Company does
not cure the Default within the time specified after receipt of the notice.
(Section 6.01) The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities of the series. (Section 7.01)
Subject to certain limitations, Holders of a majority in principal amount of
the Securities of the series may direct the Trustee in its exercise of any
trust or power. (Section 6.05) The Trustee may withhold from Securityholders
of the series notice of any continuing Default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interest. (Section 7.04) The Company is required to furnish the Trustee, not
less than annually, a brief certificate as to the Company's compliance with
all conditions and covenants under the Indenture. (Section 4.04)
The failure to redeem any Securities subject to a Conditional Redemption (as
defined) is not an Event of Default if any event on which such redemption is
so conditioned does not occur before the redemption date. (Section 6.01)
The Indenture does not have a cross-default provision. Thus, a default by the
Company on any other debt would not constitute an Event of Default.
AMENDMENTS AND WAIVERS. The Indenture and the Securities or any coupons of
the series may be amended, and any default may be waived as follows: The
Securities and the Indenture may be amended with the consent of the Holders of
a majority in principal amount of the Securities of all series affected voting
as one class. (Section 9.02) A Default on a series may be waived with the
consent of the holders of a majority in principal amount of the Securities of
the series. (Section 6.04) However, without the consent of each
Securityholder affected, no amendment or waiver may (1) reduce the amount of
Securities whose Holders must consent to an amendment or waiver, (2) reduce
the interest on or change the time for payment of interest on any Security,
(3) change the fixed maturity of any Security, (4) reduce the principal of any
non-Discounted Security or reduce the amount of principal of any Discounted
Security that would be due on acceleration thereof, (5) change the currency in
which principal or interest on a Security is payable, or (6) waive any Default
in payment of interest on or principal of a Security. (Sections 6.04 and 9.02)
Without the consent of any Securityholder, the Indenture, the Securities or
any coupons may be amended to cure any ambiguity, omission, defect or
inconsistency; to provide for assumption of Company obligations to
Securityholders in the event of a merger or consolidation requiring such
assumption; to provide that specific provisions of the Indenture shall not
apply to a series of Securities not previously issued; to create a series and
establish its terms; to provide for a separate Trustee for one or more series;
or to make any change that does not materially adversely affect the rights of
any Securityholder. (Section 9.01)
LEGAL DEFEASANCE AND COVENANT DEFEASANCE. Securities of a series may be
defeased in accordance with their terms and, unless the Securities Resolution
establishing the terms of the series otherwise provides, as set forth below.
The Company at any time may terminate as to a series all of its obligations
(except for certain obligations, including obligations with respect to the
defeasance trust and obligations to register the transfer or exchange of a
-18-
<PAGE> 22
Security, to replace destroyed, lost or stolen Securities and coupons and to
maintain agencies in respect of the Securities) with respect to the Securities
of the series and any related coupons and the Indenture ("legal defeasance").
The Company at any time may terminate as to a series its obligations with
respect to the Securities and coupons of the series under the covenant
described under "Certain Covenants--Limitations on Liens" and any other
restrictive covenants which may be applicable to a particular series
("covenant defeasance").
The Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, a series may not be accelerated because of an Event
of Default. If the Company exercises its covenant defeasance option, a series
may not be accelerated by reference to the covenant described under "Certain
Covenants--Limitations on Liens" or any other restrictive covenants which may
be applicable to a particular series. (Section 8.01)
To exercise either defeasance option as to a series, the Company must deposit
in trust (the "defeasance trust") with the Trustee money or U.S. Government
Obligations for the payment of principal, premium, if any, and interest on the
Securities of the series to redemption or maturity and must comply with
certain other conditions. In particular, the Company must obtain an opinion
of tax counsel that the defeasance will not result in recognition of any gain
or loss to holders for Federal income tax purposes. "U.S. Government
Obligations" are direct obligations of the United States of America which have
the full faith and credit of the United States of America pledged for payment
and which are not callable at the issuer's option, or certificates
representing an ownership interest in such obligations. (Section 8.02)
REGARDING THE TRUSTEE. Firstar Trust Company will act as Trustee and
Registrar for Securities issued under the Indenture and, unless otherwise
indicated in a Prospectus Supplement, the Trustee will also act as Transfer
Agent and Paying Agent with respect to the Securities. (Section 2.03) The
Company may remove the Trustee with or without cause if the Company so
notifies the Trustee six months in advance and if no Default occurs during the
six-month period. (Section 7.07) The Trustee is also trustee under the
Mortgage for the Company's First Mortgage Bonds, including the New Bonds, and
provides services for the Company and certain affiliates, including Wisconsin
Energy and Wisconsin Natural, as a depository of funds, registrar, trustee
under other indentures and similar services. See "Description of New Bonds--
Regarding the Trustee."
BOOK-ENTRY ONLY SYSTEM
The New Bonds and Debt Securities of any series may be issued initially in the
form of one or more global securities under a book-entry only system operated
by a securities depository. Unless otherwise specified in the Prospectus
Supplement, The Depository Trust Company ("DTC") will act as securities
depository for the New Bonds and Debt Securities, which would be registered in
the name of CEDE & Co., as registered securityholder and nominee for DTC.
Individual purchases of Book-Entry Interests (as herein defined) in any such
New Bonds or Debt Securities will be made in book-entry form. Purchasers of
Book-Entry Interests in such New Bonds or Debt Securities will not receive
certificates representing their interests in such New Bonds or Debt
Securities. So long as CEDE & Co., as nominee of DTC, is the securityholder,
references herein to holders of the Bonds or Debt Securities or registered
owners will mean CEDE & Co., rather than the owners of Book-Entry Interests in
New Bonds or Debt Securities.
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<PAGE> 23
DTC is a limited purpose trust company organized under the banking laws of the
State of New York and a "banking organization" within the meaning of that law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities deposited by its participants (the "DTC Participants") and
facilitates the settlement of securities transactions among DTC Participants
in such securities through electronic computerized book-entry changes in
accounts of the DTC Participants, thereby eliminating the need for physical
movement of securities certificates. Direct DTC Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations, some of whom (including, possibly, the
underwriters with respect to the New Bonds or Debt Securities), together with
the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc., own DTC. Access to the DTC
system is also available to others such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a DTC
Participant, either directly or indirectly (the "Indirect Participants").
DTC Participants purchasing Book-Entry Interests (as defined below) in any New
Bonds or Debt Securities will not receive certificates. Each DTC Participant
will receive a credit balance in the records of DTC in the amount of such DTC
Participant's interest in such New Bonds or Debt Securities, which will be
confirmed in accordance with DTC's standard procedures. The ownership
interest of each actual purchaser of a Book-Entry Interest in a New Bond or
Debt Security (the "Book-Entry Interests") will be recorded through the
records of the DTC Participant or through the records of the Indirect
Participant. Owners of Book-Entry Interests should receive from the DTC
Participant or Indirect Participant a written confirmation of their purchase
providing details of the Book-Entry Interests acquired. Transfers of Book-
Entry Interests will be accomplished by book entries made by the DTC
Participants or Indirect Participants who act on behalf of the owners of Book-
Entry Interests. Owners of Book-Entry Interests will not receive certificates
representing their ownership of Book-Entry Interests with respect to any New
Bonds or Debt Securities except as described below upon the resignation of
DTC.
Under the Mortgage and Indenture, payments made by the respective Trustee to
DTC or its nominee will satisfy the Company's obligations under the Mortgage
or Indenture, as the case may be, to the extent of the payments so made.
Owners of Book-Entry Interests will not be or be considered by the Company or
the respective Trustee to be, and will not have any rights as, holders of New
Bonds under the Mortgage or Debt Securities under the Indenture, as the case
may be.
NEITHER THE COMPANY NOR THE TRUSTEE UNDER THE MORTGAGE AND INDENTURE WILL HAVE
ANY RESPONSIBILITY OR OBLIGATION TO ANY DTC PARTICIPANT, INDIRECT PARTICIPANT
OR ANY OWNER OF A BOOK-ENTRY INTEREST OR ANY OTHER PERSON NOT SHOWN ON THE
REGISTRATION BOOKS OF SUCH TRUSTEE AS BEING A HOLDER OF NEW BONDS OR DEBT
SECURITIES WITH RESPECT TO: (1) ANY NEW BONDS OR DEBT SECURITIES, AS THE CASE
MAY BE; (2) THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC
PARTICIPANT OR INDIRECT PARTICIPANT; (3) THE PAYMENT BY DTC OR ANY DTC
PARTICIPANT OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE TO ANY OWNER OF A BOOK-
ENTRY INTEREST IN RESPECT OF THE PRINCIPAL OR REDEMPTION PRICE OF OR INTEREST
ON SUCH NEW BONDS OR DEBT SECURITIES; (4) THE DELIVERY BY DTC OR ANY DTC
PARTICIPANT OR INDIRECT PARTICIPANT OF ANY NOTICE TO ANY OWNER OF A BOOK-ENTRY
INTEREST WHICH IS REQUIRED OR PERMITTED UNDER THE TERMS OF THE MORTGAGE OR
INDENTURE TO BE GIVEN TO HOLDERS OF NEW BONDS OR DEBT SECURITIES; (5) THE
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<PAGE> 24
SELECTION OF THE OWNERS OF A BOOK-ENTRY INTEREST TO RECEIVE PAYMENT IN THE
EVENT OF ANY PARTIAL REDEMPTION OF ANY NEW BONDS OR DEBT SECURITIES; OR (6)
ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC OR ITS NOMINEE AS HOLDER OF NEW
BONDS OR DEBT SECURITIES.
Principal and redemption price of, and interest payments on, New Bonds and
Debt Securities registered in the name of DTC or its nominee will be made to
DTC or such nominee, as registered owner of such New Bonds or Debt Securities.
DTC is responsible for disbursing such payments to the appropriate DTC
Participants and such DTC Participants, and any Indirect Participants, are in
turn responsible for disbursing the same to the owners of Book-Entry
Interests. Unless it has reason to believe it will not receive payment, DTC's
current practice is to credit the accounts of the DTC Participants on a
payment date in accordance with their respective holdings shown on the records
of DTC. Payments by DTC Participants and Indirect Participants to owners of
Book-Entry Interests will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name", and will be the
responsibility of such DTC Participant or Indirect Participant and not of DTC,
the Company or the respective Trustee, subject to any statutory and regulatory
requirements as may be in effect from time to time.
DTC Participants and Indirect Participants carry the "position" of the
ultimate Book-Entry Interest owner on their records, and will be responsible
for providing information to the ultimate Book-Entry Interest owner as to the
New Bonds or Debt Securities in which the Book-Entry Interest is held, debt
service payments received, and other information. Each person for whom a DTC
Participant or Indirect Participant acquires an interest in New Bonds or Debt
Securities, as nominee, may desire to make arrangements with such DTC
Participant or Indirect Participant to receive a credit balance in the records
of such DTC Participant or Indirect Participant, to have all notices of
redemption or other communications to or by DTC which may affect such persons
forwarded in writing by such DTC Participant or Indirect Participant, and to
have notification made of all debt service payments.
Purchases, transfers and sales of Book-Entry Interests by the ultimate Book-
Entry Interest owners may be made through book entries made by DTC
Participants or Indirect Participants or others who act for the ultimate Book-
Entry Interest owner. The Trustee under the Mortgage and Indenture, the
Company and the underwriters, as such, have no role in those purchases,
transfers or sales.
Owners of Book-Entry Interests may be charged a sum sufficient to cover any
tax, fee, or other governmental charge that may be imposed in relation to any
transfer or exchange of a Book-Entry Interest.
Each Trustee will recognize and treat DTC (or any successor securities
depository) or its nominee as the holder of New Bonds and Debt Securities
registered in its name or the name of its nominee for all purposes, including
payment of debt service, notices, enforcement of remedies and voting. Under
DTC's current practice, a proxy will be given to the DTC Participants holding
Book-Entry Interests in New Bonds and Debt Securities in connection with any
matter on which holders of such New Bonds or Debt Securities are asked to vote
or give their consent. Crediting of debt service payments and transmittal of
notices and other communications by DTC to DTC Participants, by DTC
Participants to Indirect Participants and by DTC Participants and Indirect
Participants to the ultimate Book-Entry Interest owners are the responsibility
of those persons and will be handled by arrangements among them and are not
the responsibility of either Trustee, the Company or any underwriter, as such.
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<PAGE> 25
Each Trustee, so long as a book-entry system is used for any series of New
Bonds or Debt Securities, will send any notice of redemption and any other
notices required by the Mortgage or Indenture to be sent to holders of such
New Bonds or Debt Securities, respectively, only to DTC (or such successor
securities depository) or its nominee. Any failure of DTC to advise any DTC
Participant, or of any DTC Participant or Indirect Participant to notify the
Book-Entry Interest owner, of any such notice and its content or effect will
not affect the validity of the redemption of the New Bonds or Debt Securities
called for redemption, or any other action premised on that notice. In the
event of a call for redemption, the Trustee's notification to DTC will
initiate DTC's standard call process, and, in the event of a partial call, its
lottery process by which the call will be randomly allocated to DTC
Participants holding positions in the New Bonds or Debt Securities to be
redeemed. When DTC and DTC Participants allocate the call for redemption, the
owners of the Book-Entry Interests that have been called should be notified by
the broker or other person responsible for maintaining the records of those
interests and subsequently credited by that person with the proceeds once such
New Bonds or Debt Securities are redeemed.
The Company, the Trustee under the Mortgage and Indenture and any underwriter
or agent cannot and do not give any assurances that DTC, DTC Participants or
others will distribute payments of debt service on New Bonds or Debt
Securities made to DTC or its nominee as the registered owner, or any
redemption or other notices, to the Book-Entry Interest owners, or that they
will do so on a timely basis, or that DTC will serve and act in the manner
described in this Prospectus.
The Company understands that the current "Rules" applicable to DTC are on file
with the Commission, and that the current "Procedures" of DTC to be followed
in dealing with DTC Participants are on file with DTC.
If DTC is at any time unwilling or unable to continue as depository, and a
successor depository is not appointed by the Company within 90 days, the
Company will issue individual certificates to owners of Book-Entry Interests
in exchange for the New Bonds or Debt Securities held by DTC or its nominee,
as the case may be. In such instance, an owner of a Book-Entry Interest will
be entitled to physical delivery of certificates equal in principal amount to
such Book-Entry Interest and to have such certificates registered in its name.
Individual certificates so issued will be issued in denominations of $1,000 or
any multiple thereof.
Neither the Company, the Trustee under the Mortgage and Indenture nor any
underwriter makes any representation as to the accuracy of the above
description of DTC's business, organization and procedures, which is based
upon information furnished by DTC.
PLAN OF DISTRIBUTION
The Company may sell New Bonds and Debt Securities to or through underwriters
or dealers and also may sell New Bonds and Debt Securities directly to other
purchasers or through agents.
The distribution of New Bonds and Debt Securities of any series may be
effected from time to time in one or more transactions at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices.
-22-
<PAGE> 26
In connection with the sale of New Bonds and Debt Securities, underwriters may
receive compensation from the Company or from purchasers of New Bonds and Debt
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. Underwriters, dealers and agents that participate
in the distribution of New Bonds and Debt Securities may be deemed to be
"underwriters", and any discounts or commissions received by them from the
Company and any profit on the resale of New Bonds and Debt Securities by them
may be deemed to be underwriting discounts and commissions, under the
Securities Act.
The Prospectus Supplement relating to each series of New Bonds will also set
forth the terms of the offering of the New Bonds of each series, including, to
the extent applicable, the initial offering price, the proceeds to the
Company, the underwriting discounts or commissions, and any other discounts or
concessions to be allowed or re-allowed to dealers. The principal
underwriters with respect to each series sold to or through underwriters will
be named in the Prospectus Supplement relating to such series and only the
underwriters named in such Prospectus Supplement are deemed to be underwriters
in connection with the New Bonds offered thereby.
The Prospectus Supplement relating to each series of Debt Securities will also
set forth the terms of the offering of the Debt Securities of each series,
including, to the extent applicable, the initial offering price, the proceeds
to the Company, the underwriting discounts or commissions and any other
discounts or concessions to be allowed or re-allowed to dealers. The
principal underwriters with respect to each series sold to or through
underwriters will be named in the Prospectus Supplement relating to such
series and only the underwriters named in such Prospectus Supplement are
deemed to be underwriters in connection with the Debt Securities offered
thereby.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase New Bonds or Debt Securities from the Company at the
public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject only to those conditions
set forth in the Prospectus Supplement and the Prospectus Supplement will set
forth the commission payable for the solicitation of such contracts.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of New Bonds and Debt
Securities may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the agents, underwriters or
dealers may be required to make in respect thereto. Agents, underwriters and
dealers may be customers of, engage in transactions with or perform services
for the Company in the ordinary course of business.
The New Bonds and Debt Securities are not proposed to be listed on a
securities exchange, and any underwriters will not be obligated to make a
market in the New Bonds and Debt Securities. The Company cannot predict the
activity or liquidity of any trading in the New Bonds and Debt Securities.
-23-
<PAGE> 27
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 1994 have
been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
Future audited financial statements incorporated in this Prospectus by
reference to future filings under the Exchange Act, as provided under
"Incorporation of Certain Documents by Reference" above, will be so
incorporated in reliance on the related report or reports of the firm of
independent accountants auditing such financial statements, given on such
authority of such firm, if and to the extent such filings include the consent
of such firm to the incorporation of such report or reports herein.
LEGAL OPINIONS
Certain legal matters in connection with the New Bonds and Debt Securities
will be passed upon for the Company by Walter T. Woelfle, Director-Legal
Services Department of the Company, James D. Zakrajsheck, Counsel of the
Company, or A. William Finke, Counsel of the Company, and by Quarles & Brady,
411 East Wisconsin Avenue, Milwaukee, Wisconsin. Certain legal matters in
connection with the New Bonds and Debt Securities will be passed upon for the
underwriters by Cahill Gordon & Reindel (a partnership including a
professional corporation), 80 Pine Street, New York, New York. Quarles &
Brady and Cahill Gordon & Reindel will not pass upon the incorporation of the
Company, franchise matters, questions of title or the lien of the Mortgage.
Cahill Gordon & Reindel will rely upon the opinion of Mr. Woelfle, Mr.
Zakrajsheck or Mr. Finke as to all matters of Wisconsin law. Cahill Gordon &
Reindel and Quarles & Brady will rely upon such opinion as to matters of
Michigan law and the exempt status of the Company and Wisconsin Energy under
the Public Utility Holding Company Act of 1935, as amended. Also, such firms,
Mr. Woelfle, Mr. Zakrajsheck and Mr. Finke will rely on the opinion of Loomis,
Ewert, Parsley, Davis & Gotting, P.C., 232 South Capitol Avenue, Lansing,
Michigan, as to matters of Michigan law relating to authority to do business
and regulatory approval for the New Bonds and Debt Securities in Michigan.
The statements as to matters of law and legal conclusions under "Description
of New Bonds--Security" have been prepared under the supervision of, and
reviewed by, Walter T. Woelfle, Director-Legal Services Department of the
Company, and such statements are made on his authority. As of September 30,
1995, Mr. Woelfle, Mr. Zakrajsheck and Mr. Finke owned beneficially 5,955
shares, 1,279 shares and 14,218 shares of Common Stock of Wisconsin Energy,
respectively.
-24-
<PAGE> 28
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated fees and expenses payable by the registrant in connection with
the issuance and distribution of the New Bonds and the Debt Securities (some
of which have been paid in connection with the prior registration statements
to which the combined prospectus contained herein relates) are as follows:
Securities and Exchange Commission registration fee .............. $136,259
Public Service Commission of Wisconsin fee ........................ 1,000
Trustee's fee and expenses ........................................ 20,000
Printing and engraving expenses ................................... 75,000
Legal fees and expenses ........................................... 250,000
Accounting fees and expenses ...................................... 60,000
Blue Sky fees and expenses ........................................ 30,000
Rating agency fees ................................................ 120,000
Abstract and recording fees ....................................... 30,000
Miscellaneous ..................................................... 27,741
--------
Total ........................................................ $750,000
========
Item 15. Indemnification of Directors and Officers.
Chapter 180 of the Wisconsin Statutes includes provisions for indemnification
by a corporation of a director or officer against certain liabilities and
expenses incurred by him or her in any proceeding (whether threatened, pending
or completed, and whether brought by the corporation or any other person) to
which he or she was a party because of being a director or officer. In
general, under these provisions (1) a corporation is required to indemnify a
director or officer, to the extent he or she has been successful on the merits
or otherwise in the defense of any such proceeding, for all reasonable
expenses incurred in the proceeding, and (2) in other cases, the corporation
is required to indemnify a director or officer against liabilities (including,
among other things, judgments, penalties, fines and reasonable expenses)
incurred in any such proceeding unless liability was incurred because he or
she breached or failed to perform a duty to the corporation and the breach or
failure constitutes any of the following: (a) a willful failure to deal
fairly with the corporation or its shareholders in connection with a matter in
which he or she has a material conflict of interest, (b) a violation of
criminal law, unless he or she had reasonable cause to believe his or her
conduct was lawful or no reasonable cause to believe his or her conduct was
unlawful, (c) a transaction from which he or she derived an improper personal
profit, or (d) willful misconduct. The provisions specify that the
termination of a proceeding by judgment, order, settlement or conviction, or
upon a plea of no contest or an equivalent plea, does not, by itself, create a
presumption that indemnification is not required. Also, the provisions permit
II-1
<PAGE> 29
a corporation to pay or reimburse reasonable expenses as incurred if the
director or officer affirms his or her good faith belief that he or she has
not breached or failed to perform his or her duties to the corporation and
undertakes to make repayment to the extent it is ultimately determined that
indemnification is not required. With specified exceptions, these provisions
do not preclude additional indemnification. Chapter 180 specifically provides
that it is the public policy of the State of Wisconsin to require or permit
indemnification, allowance of expenses and insurance, to the extent required
or permitted generally thereunder, for any liability incurred in connection
with a proceeding involving a federal or state statute, rule or regulation
regulating the offer, sale or purchase of securities.
Chapter 180 of the Wisconsin Statutes also provides that, with certain
exceptions, a director is not liable to a corporation, its shareholders, or
any person asserting rights on behalf of the corporation or its shareholders,
for damages, settlements, fees, fines, penalties or other monetary liabilities
arising from a breach of, or failure to perform, any duty resulting solely
from his or her status as a director, unless the person asserting liability
proves that the breach or failure to perform constitutes any of the four
exceptions to mandatory indemnification referred to above.
The Bylaws of the registrant and the Bylaws of its parent, Wisconsin Energy
Corporation ("Wisconsin Energy"), provide generally for mandatory
indemnification of directors and officers of the respective companies to the
fullest extent permitted by law.
Underwriting or purchase agreements entered into by the registrant in
connection with the securities being registered may provide for
indemnification of directors, officers and controlling persons of the
registrant against certain liabilities, including liabilities under the
Securities Act of 1933.
Officers and directors of the registrant and Wisconsin Energy are covered by
insurance policies purchased by the registrant or Wisconsin Energy, under
which they are insured (subject to exceptions and limitations specified in the
policies) against expenses and liabilities arising out of actions, suits or
proceedings to which they are parties by reason of being or having been such
directors or officers.
Item 16. Exhibits.
The following exhibits are filed as part of this registration statement.
Exhibit No.
- -----------
(1)-(1) Form of proposed Underwriting Agreement for New Bonds.
(2) Form of proposed Underwriting Agreement for Debt Securities.
(2)-(1) Amended and Restated Agreement and Plan of Merger, dated as of
April 28, 1995, as amended and restated as of July 26, 1995, by and
among Northern States Power Company, Wisconsin Energy Corporation,
Northern Power Wisconsin Corp. and WEC Sub Corp. (Exhibit (2)-1 to
Wisconsin Energy Corporation's Registration Statement on Form S-4
filed on August 7, 1995, Registration No. 33-61619.)
(2) Plan and Agreement of Merger, dated June 30, 1994, by and between
Wisconsin Electric Power Company and Wisconsin Natural Gas Company.
(Appendix A to Wisconsin Electric's Proxy Statement dated October 31,
1994, in File No. 1-1245.)
II-2
<PAGE> 30
Mortgage or
Supplemental
Indenture Company Date Exhibit No. Under File No.
------------ ------- ---- ----------- --------------
(4)-(1)* - Mortgage Wisconsin 10/28/38 B-1 2-4340
and Deed Electric
of Trust ("WE")
(2)* - Second WE 06/01/46 7-C 2-6422
(3)* - Third WE 03/01/49 7-C 2-8456
(4)* - Fourth WE 06/01/50 7-D 2-8456
(5)* - Fifth WE 05/01/52 4-G 2-9588
(6)* - Sixth WE 05/01/54 4-H 2-10846
(7)* - Seventh WE 04/15/56 4-I 2-12400
(8)* - Eighth WE 04/01/58 2-I 2-13937
(9)* - Ninth WE 11/15/60 2-J 2-17087
(10)* - Tenth WE 11/01/66 2-K 2-25593
(11)* - Eleventh WE 11/15/67 2-L 2-27504
(12)* - Twelfth WE 05/15/68 2-M 2-28799
(13)* - Thirteenth WE 05/15/69 2-N 2-32629
(14)* - Fourteenth WE 11/01/69 2-O 2-34942
(15)* - Fifteenth WE 07/15/76 2-P 2-54211
(16)* - Sixteenth WE 01/01/78 2-Q 2-61220
(17)* - Seventeenth WE 05/01/78 2-R 2-61220
(18)* - Eighteenth WE 05/15/78 2-S 2-61220
(19)* - Nineteenth WE 08/01/79 (a)2(a) 1-1245
(9/30/79
Form 10-Q)
(20)* - Twentieth WE 11/15/79 (a)2(a) 1-1245
(12/31/79
Form 10-K)
(21)* - Twenty-First WE 04/15/80 (4)-21 2-69488
(22)* - Twenty-Second WE 12/01/80 (4)-1 1-1245
(12/31/80
Form 10-K)
(23)* - Twenty-Third WE 09/15/85 (4)-1 1-1245
(9/30/85
Form 10-Q)
(24)* - Twenty-Fourth WE 09/15/85 (4)-2 1-1245
(09/30/85
Form 10-Q)
(25)* - Twenty-Fifth WE 12/15/86 (4)-25 1-1245
(12/31/86
Form 10-K)
(26)* - Twenty-Sixth WE 01/15/88 4 1-1245
(01/26/88
Form 8-K)
(27)* - Twenty-Seventh WE 04/15/88 4 1-1245
(03/31/88
Form 10-Q)
(28)* - Twenty-Eighth WE 09/01/89 4 1-1245
(09/30/89
Form 10-Q)
(29)* - Twenty-Ninth WE 10/01/91 (4)-1 1-1245
(Amendment
No.1 to
12/31/91
Form 10-K)
II-3
<PAGE> 31
Mortgage or
Exhibit Supplemental
No. Indenture Company Date Exhibit No. Under File No.
- ------- ------------ ------- ---- ----------- --------------
(4)-(30)* - Thirtieth WE 12/01/91 (4)-2 1-1245
(Amendment
No. 1 to
12/31/91
Form 10-K)
(31)* - Thirty-First WE 08/01/92 (4)-1 1-1245
(06/30/92
Form 10-Q)
(32)* - Thirty-Second WE 08/01/92 (4)-2 1-1245
(06/30/92
Form 10-Q)
(33)* - Thirty-Third WE 10/01/92 (4)-1 1-1245
(09/30/92
Form 10-Q)
(34)* - Satisfaction WE 10/29/92 (4)-3 1-1245
and Discharge (09/30/92
of Mortgage Form 10-Q)
and Deed of
Trust and
Reconveyance
of Trust
Estate of
Former Wisconsin
Michigan Power
Company to
Wisconsin Electric
Power Company
(35)* - Thirty-Fourth WE 11/01/92 (4)-2 1-1245
(09/30/92
Form 10-Q)
(36)* - Thirty-Fifth WE 12/15/92 (4)-1 1-1245
(12/31/92
Form 10-K)
(37)* - Thirty-Sixth WE 01/15/93 (4)-2 1-1245
(12/31/92
Form 10-K)
(38)* - Thirty-Seventh WE 03/15/93 (4)-3 1-1245
(12/31/92
Form 10-K)
(39)* - Thirty-Eighth WE 08/01/93 (4)-1 1-1245
(06/30/93
Form 10-Q)
(40)* - Thirty-Ninth WE 09/15/93 (4)-1 1-1245
(09/30/93
Form 10-Q)
(41) - Form of proposed Supplemental
Indenture creating
series of New Bonds.
II-4
<PAGE> 32
Mortgage or
Exhibit Supplemental
No. Indenture Company Date Exhibit No. Under File No.
- ------- -------------- ------- ---- ----------- --------------
(4)-(42) - Form of New Bonds (included in Exhibit (4)-(41)).
(43) - Form of proposed Indenture for Debt Securities including, as
exhibits, proposed forms of Registered Security and Bearer
Security thereunder.
(5) - Opinion of Walter T. Woelfle, Esq., Director-Legal Services
Department of the Company, as to the legality of the New Bonds
and Debt Securities being registered.
(12) - Statement of Computation of Ratios of Earnings to Fixed Charges.
(23)-(1) - Consent of Price Waterhouse LLP.
(2) - Consent of Walter T. Woelfle, Esq., contained in his opinion
filed as Exhibit (5).
(3) - Consent of James D. Zakrajsheck, Esq.
(4) - Consent of A. William Finke, Esq.
(5) - Consent of Loomis, Ewert, Parsley, Davis & Gotting, P.C.
(6) - Consent of Quarles & Brady.
(7) - Consent of Deloitte & Touche LLP.
(24) - Power of Attorney, contained in signature page of Registration
Statement.
(25)-(1) - Statement of Eligibility of Firstar Trust Company, as
Trustee, on Form T-1 with respect to the New Bonds.
(2) - Statement of Eligibility of Firstar Trust Company, as Trustee, on
Form T-1 with respect to the Debt Securities.
- --------------------
* The exhibits listed above and marked with an asterisk were filed as exhibits
to Registration Statements and Reports previously filed with the Commission
under the exhibit number and file number as shown after each such exhibit,
and they are hereby incorporated herein by reference.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
II-5
<PAGE> 33
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934, as amended, that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions referred to in Item
15, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against
public policy as expressed in that Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in that Act
and will be governed by the final adjudication of such issue.
II-6
<PAGE> 34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Milwaukee, State of Wisconsin, on
the 15th day of November, 1995.
WISCONSIN ELECTRIC POWER COMPANY
By /s/ R. A. Abdoo
----------------------------------
R. A. Abdoo, Chairman of the Board
and Chief Executive Officer
Each person whose signature appears below hereby authorizes R. A. Abdoo, R. R.
Grigg, Jr., J. G. Remmel and C. H. Baker, or any of them, as attorneys-in-fact
with full power of substitution, to execute in the name and on behalf of such
person, individually, and in each capacity stated below or otherwise, and to
file, any and all pre-effective or post-effective amendments to this
registration statement.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed below by the following persons in the
capacities indicated on the 15th day of November, 1995.
/s/ R. A. Abdoo
- ----------------------------------- Chairman of the Board and Chief
(R. A. Abdoo) Executive Officer (Principal
Executive Officer) and Director
/s/ R. R. Grigg, Jr.
- ----------------------------------- President and Chief Operating
(R. R. Grigg, Jr.) Officer and Director
/s/ J. G. Remmel
- ----------------------------------- Chief Financial Officer and Director
(J. G. Remmel) (Principal Financial Officer)
/s/ A. K. Klisurich
- ----------------------------------- Controller (Principal Accounting
(A. K. Klisurich) Officer)
/s/ J. F. Ahearne
- ----------------------------------- Director
(J. F. Ahearne)
/s/ J. F. Bergstrom
- ----------------------------------- Director
(J. F. Bergstrom)
II-7
<PAGE> 35
/s/ R. A. Cornog
- ----------------------------------- Director
(R. A. Cornog)
/s/ G. B. Johnson
- ----------------------------------- Director
(G. B. Johnson)
/s/ D. K. Porter
- ----------------------------------- Director
(D. K. Porter)
/s/ F. P. Stratton, Jr.
- ----------------------------------- Director
(F. P. Stratton, Jr.)
/s/ J. G. Udell
- ----------------------------------- Director
(J. G. Udell)
II-8
<PAGE> 36
Wisconsin Electric Power Company
Registration Statement on Form S-3
EXHIBIT INDEX
Exhibit No.
- -----------
(1)-(1) Form of proposed Underwriting Agreement for New Bonds.
(2) Form of proposed Underwriting Agreement for Debt Securities.
(2)-(1) Amended and Restated Agreement and Plan of Merger, dated as of
April 28, 1995, as amended and restated as of July 26, 1995, by and
among Northern States Power Company, Wisconsin Energy Corporation,
Northern Power Wisconsin Corp. and WEC Sub Corp. (Exhibit (2)-1 to
Wisconsin Energy Corporation's Registration Statement on Form S-4
filed on August 7, 1995, Registration No. 33-61619.)
(2) Plan and Agreement of Merger, dated June 30, 1994, by and between
Wisconsin Electric Power Company and Wisconsin Natural Gas Company.
(Appendix A to Wisconsin Electric's Proxy Statement dated October 31,
1994, in File No. 1-1245.)
Mortgage or
Exhibit Supplemental
No. Indenture Company Date Exhibit No. Under File No.
- ------- -------------- ------- ---- ----------- --------------
(4)-(1)* - Mortgage Wisconsin 10/28/38 B-1 2-4340
and Deed Electric
of Trust ("WE")
(2)* - Second WE 06/01/46 7-C 2-6422
(3)* - Third WE 03/01/49 7-C 2-8456
(4)* - Fourth WE 06/01/50 7-D 2-8456
(5)* - Fifth WE 05/01/52 4-G 2-9588
(6)* - Sixth WE 05/01/54 4-H 2-10846
(7)* - Seventh WE 04/15/56 4-I 2-12400
(8)* - Eighth WE 04/01/58 2-I 2-13937
(9)* - Ninth WE 11/15/60 2-J 2-17087
(10)* - Tenth WE 11/01/66 2-K 2-25593
(11)* - Eleventh WE 11/15/67 2-L 2-27504
(12)* - Twelfth WE 05/15/68 2-M 2-28799
(13)* - Thirteenth WE 05/15/69 2-N 2-32629
(14)* - Fourteenth WE 11/01/69 2-O 2-34942
(15)* - Fifteenth WE 07/15/76 2-P 2-54211
(16)* - Sixteenth WE 01/01/78 2-Q 2-61220
(17)* - Seventeenth WE 05/01/78 2-R 2-61220
(18)* - Eighteenth WE 05/15/78 2-S 2-61220
(19)* - Nineteenth WE 08/01/79 (a)2(a) 1-1245
(9/30/79
Form 10-Q)
(20)* - Twentieth WE 11/15/79 (a)2(a) 1-1245
(12/31/79
Form 10-K)
(21)* - Twenty-First WE 04/15/80 (4)-21 2-69488
(22)* - Twenty-Second WE 12/01/80 (4)-1 1-1245
(12/31/80
Form 10-K)
EI-1
<PAGE> 37
Mortgage or
Exhibit Supplemental
No. Indenture Company Date Exhibit No. Under File No.
- ------- -------------- ------- ---- ----------- --------------
(4)-(23)* - Twenty-Third WE 09/15/85 (4)-1 1-1245
(9/30/85
Form 10-Q)
(24)* - Twenty-Fourth WE 09/15/85 (4)-2 1-1245
(09/30/85
Form 10-Q)
(25)* - Twenty-Fifth WE 12/15/86 (4)-25 1-1245
(12/31/86
Form 10-K)
(26)* - Twenty-Sixth WE 01/15/88 4 1-1245
(01/26/88
Form 8-K)
(27)* - Twenty-Seventh WE 04/15/88 4 1-1245
(03/31/88
Form 10-Q)
(28)* - Twenty-Eighth WE 09/01/89 4 1-1245
(09/30/89
Form 10-Q)
(29)* - Twenty-Ninth WE 10/01/91 (4)-1 1-1245
(Amendment
No.1 to
12/31/91
Form 10-K)
(30)* - Thirtieth WE 12/01/91 (4)-2 1-1245
(Amendment
No. 1 to
12/31/91
Form 10-K)
(31)* - Thirty-First WE 08/01/92 (4)-1 1-1245
(06/30/92
Form 10-Q)
(32)* - Thirty-Second WE 08/01/92 (4)-2 1-1245
(06/30/92
Form 10-Q)
(33)* - Thirty-Third WE 10/01/92 (4)-1 1-1245
(09/30/92
Form 10-Q)
(34)* - Satisfaction WE 10/29/92 (4)-3 1-1245
and Discharge (09/30/92
of Mortgage Form 10-Q)
and Deed of
Trust and
Reconveyance
of Trust
Estate of
Former Wisconsin
Michigan Power
Company to
Wisconsin Electric
Power Company
EI-2
<PAGE> 38
Mortgage or
Exhibit Supplemental
No. Indenture Company Date Exhibit No. Under File No.
- ------- -------------- ------- ---- ----------- --------------
(4)-(35)* - Thirty-Fourth WE 11/01/92 (4)-2 1-1245
(09/30/92
Form 10-Q)
(36)* - Thirty-Fifth WE 12/15/92 (4)-1 1-1245
(12/31/92
Form 10-K)
(37)* - Thirty-Sixth WE 01/15/93 (4)-2 1-1245
(12/31/92
Form 10-K)
(38)* - Thirty-Seventh WE 03/15/93 (4)-3 1-1245
(12/31/92
Form 10-K)
(39)* - Thirty-Eighth WE 08/01/93 (4)-1 1-1245
(06/30/93
Form 10-Q)
(40)* - Thirty-Ninth WE 09/15/93 (4)-1 1-1245
(09/30/93
Form 10-Q)
(41) - Form of proposed Supplemental
Indenture creating
series of New Bonds.
(42) - Form of New Bonds (included in Exhibit (4)-(41)).
(43) - Form of proposed Indenture for Debt Securities including, as
exhibits, proposed forms of Registered Security and Bearer
Security thereunder.
(5) - Opinion of Walter T. Woelfle, Esq., Director-Legal Services
Department of the Company, as to the legality of the New Bonds
and Debt Securities being registered.
(12) - Statement of Computation of Ratios of Earnings to Fixed Charges.
(23)-(1) - Consent of Price Waterhouse LLP.
(2) - Consent of Walter T. Woelfle, Esq., contained in his opinion
filed as Exhibit (5).
(3) - Consent of James D. Zakrajsheck, Esq.
(4) - Consent of A. William Finke, Esq.
(5) - Consent of Loomis, Ewert, Parsley, Davis & Gotting, P.C.
(6) - Consent of Quarles & Brady.
(7) - Consent of Deloitte & Touche LLP.
(24) - Power of Attorney, contained in signature page of Registration
Statement.
(25)-(1) - Statement of Eligibility of Firstar Trust Company, as
Trustee, on Form T-1 with respect to the New Bonds.
(2) - Statement of Eligibility of Firstar Trust Company, as Trustee, on
Form T-1 with respect to the Debt Securities.
EI-3
<PAGE> 1
EXHIBIT (1)-(1)
WISCONSIN ELECTRIC POWER COMPANY
FIRST MORTGAGE BONDS
UNDERWRITING AGREEMENT
New York, New York
Dated the date set
forth in Schedule I hereto
To the Underwriters
set forth in
Schedule II hereto
Dear Sirs and Madams:
Wisconsin Electric Power Company, a Wisconsin corpo-
ration (the "Company"), proposes to issue and sell to the
underwriter or underwriters named in Schedule II hereto (the
"Underwriters"), the aggregate principal amount of a new series
of its First Mortgage Bonds (the "Securities") set forth in
Schedule I hereto, to be issued pursuant to the Mortgage and
Deed of Trust dated October 28, 1938, as heretofore supple-
mented and amended and as supplemented by a Supplemental Inden-
ture to be dated the date set forth in Schedule I hereto (said
Mortgage and Deed of Trust as so supplemented and amended is
hereinafter called the "Indenture"), between the Company and
Firstar Trust Company (formerly First Wisconsin Trust Company),
as trustee (the "Trustee"). The terms of the Securities are
also set forth in Schedule I hereto. The terms "you" and
"yours" refer to those Underwriters who sign the Underwriting
Agreement either on behalf of themselves only or on behalf of
themselves and as representative or representatives of the
Underwriters (the "Representatives") named in Schedule II
hereto, as the case may be.
1. Representations and Warranties. The Company rep-
resents and warrants to, and agrees with, each Underwriter
that:
(a) The Company meets the requirements for use
of Form S-3 under the Securities Act of 1933, as
amended (the "Act"). The Company has filed with the
Securities and Exchange Commission (the "Commission")
<PAGE> 2
-2-
two registration statements on such Form (Nos. 33-49199 and
51749), which have become effective, for the registration under
the Act of the Securities (the "Original Registration
Statements"). In addition, the Company has subsequently
filed with the Commission a registration statement on such Form
(No. 33-_____), which has also become effective (the "New
Registration Statement"). Both the original Registration
Statements and the New Registration Statement, as amended at the
date of this Agreement, meet the requirements set forth in
Rule 415(a)(1)(x) under the Act and comply in all other
material respects with said Rule. The Company proposes to file
with the Commission pursuant to Rule 424(b)(2) or 424(b)(5)
under the Act a supplement (the "Prospectus Supplement") to the
form of prospectus, which constitutes a "combined prospectus" as
that term is used in Rule 429 under the Act, included in
the new Registration Statement relating to the Securities and the
plan of distribution thereof and has previously advised you of all
further information (financial and other) with respect to the
Company to be set forth therein. The Original Registration
Statements and the New Registration Statement, including the
exhibits thereto, as amended at the date of this Agreement, are
hereinafter collectively called the "Registration Statement"; such
prospectus in the form in which it appears in the New Registration
Statement is hereinafter called the "Basic Prospectus"; and the
Basic Prospectus, as supplemented by the Prospectus Supplement, in
the form in which it shall be filed with the Commission pursuant
to Rule 424(b)(2) or 424(b)(5) is hereinafter called the "Final
Prospectus". Any preliminary form of the Final Prospectus which
has heretofore been filed pursuant to Rule 424(b)(2) or 424(b)(5)
is hereinafter called the "Preliminary Final Prospectus". Any
reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend," "amendment"
or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final
<PAGE> 3
-3-
Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is
first filed or transmitted for filing pursuant to
Rule 424(b)(2) or 424(b)(5) under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing
of any document incorporated by reference in the Registration
Statement), when any supplement to the Final Prospectus is
filed with the Commission and at the Closing Date, (i) the
Registration Statement, as then amended as of any such time,
and the Final Prospectus, as then amended or supplemented as of
such time, and the Indenture will comply in all material
respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the Exchange Act and the respective rules thereunder and
(ii) neither the Registration Statement, as then amended as of
such time, nor the Final Prospectus, as then amended or
supplemented, as of such time, will contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture
Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus
or any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter specifically for use
in connection with the preparation of the Registration
Statement and the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth,
the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, the
principal amount of the Securities set forth opposite such Underwriter's
name in Schedule II hereto, in each case at the purchase price set forth in
Schedule I hereto.
<PAGE> 4
-4-
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at the office, on the date and at the time
specified in Schedule I hereto, which date and time may be postponed by
agreement between you and the Company or as provided in Section 9 hereof
(such date and time of delivery and payment for the Securities being herein
called the "Closing Date"). Delivery of the Securities shall be made to
you or your designee for the respective accounts of the several Under-
writers against payment of the purchase price thereof to or upon the order
of the Company by either wire transfer or certified or official bank check
or checks payable in either immediately available funds or next-day funds,
all as set forth in Schedule I hereto. Certificates for the Securities
shall be registered in such names and in such denominations as you may
request not less than two full business days in advance of the Closing
Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by you in New York, New York, not later
than 1:00 P.M. on the business day immediately preceding the Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public
as set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the
Registration Statement or supplement (including the Final Prospectus
or the Basic Prospectus) unless the Company has furnished to you
copies for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object
(except any filings required to be made pursuant to the Exchange Act
or the rules and regulations thereunder). Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed
with the Commission pursuant to Rule 424(b)(2) or 424(b)(5) or will
cause the Final Prospectus to be transmitted by a means reasonably
calculated to result in filing with the Commission pursuant to said
Rule. The Company will promptly advise you (i) when the Final
Prospectus shall have been transmitted to the Commission for filing
or filed pursuant to Rule 424(b)(2) or 424(b)(5), (ii) when any
amendment to the Registration
<PAGE> 5
-5-
Statement shall have been filed or become effective, (iii) of any
request by the Commission for any amendment of the Registration
Statement or amendment or supplement to the Final Prospectus or for
any additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or any amendment thereto or the initiation or the
threatened initiation of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or the threatened initiation of any
proceeding for such purpose. The Company will use its best efforts
to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to you an earnings statement or
statements of the Company which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Underwriters and counsel
for the Underwriters without charge, copies of the Registration
Statement (including exhibits thereto) and each amendment thereto
which shall become effective on or prior to the Closing Date, the
Basic Prospectus and, so long as delivery of a prospectus by the
Underwriters or a dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus, the Final Prospectus, any
amendments and supplements thereto and documents
<PAGE> 6
-6-
incorporated by reference therein as you may reasonably request. The
Company will pay the expenses of printing all documents relating to
the offering of the Securities.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as you may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for purchase by
institutional investors; provided, however, that the Company shall
not be required to qualify as a foreign corporation or to file any
consent to service of process under the laws of any jurisdiction or
to comply with any other requirements deemed by the Company to be
unduly burdensome.
(f) Until the business day following the Closing Date, the
Company will not without your consent offer, sell or contract to
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed
under the Act.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to
the Closing Date (including the filing of any document incorporated by
reference therein) and as of the Closing Date, to the accuracy of the
statements of the Company or the Company officers made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed or the
Company will cause the Final Prospectus to be transmitted by a means
reasonably calculated to result in filing with the Commission not
later than 5:00 P.M., New York City time, on the business day
following the date hereof.
<PAGE> 7
-7-
(b) The Company shall have furnished to the Underwriters the
opinion of Walter T. Woelfle, Esq., Director - Legal Department of the
Company, James D. Zakrajsheck, Counsel of the Company, or A. William
Finke, Esq., Counsel of the Company, dated the Closing Date, to the
effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in active status under the
laws of the State of Wisconsin, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus and is duly qualified to do
business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts
material business;
(ii) the Securities conform as to legal matters in all
material respects to the description thereof contained in the
Final Prospectus;
(iii) the Indenture has been duly authorized, executed
and delivered by the Company and the Trustee, has been duly
qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement, to the qualifications set forth in the next
sentence); and the Securities have been duly authorized by all
necessary corporate action of the Company, executed and
authenticated in accordance with the provisions of the
Indenture (assuming that the Securities have been duly
authenticated by the Trustee, which fact such counsel need not
verify by an inspection of the Securities) and constitute
legal, valid and binding obligations of the Company entitled to
the benefits and security of the Indenture and enforceable in
accordance with their terms (subject, as to enforcement, to the
qualifications set forth in the next sentence). The opinions
that the Indenture and the Securities are enforceable in
accordance with their terms are subject to: (i) applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in
effect; (ii) general equity principles; and (iii) the
qualification that certain of the remedial
<PAGE> 8
-8-
provisions in the Indenture may be limited or rendered
unenforceable under applicable laws and judicial decisions,
including, but not limited to, the provisions regarding right
of possession, assignment of rents without a receiver, power of
sale, and waiver of the right of redemption, but that this
should not materially interfere with the practical realization
of the security intended to be provided by the Indenture;
(iv) the Company has good and marketable title in fee
simple to all of the real property specifically described in
the granting clauses of the Indenture other than leasehold
estates, except property which has been released from the lien
of the Indenture in accordance with the provisions thereof, and
also has good title to all other physical properties, rights of
way and easements used in connection with its business, subject
only to: (i) the exceptions referred to in said granting
clauses; (ii) existing leases to others; (iii) certain liens,
reservations, defects, rights of way and encumbrances; and (iv)
the lien of the Indenture and permitted liens as defined in the
Indenture.
Substantially all of the electric transmission lines of
the Company of over 66,000 volts are constructed on private
rights of way held by deed or easements. The other electric
transmission lines, the electric distribution lines, some of
the electric substations and the steam distribution mains are
located in or on streets and highways, and on land owned for
the most part by others than the Company.
Various parcels of land owned by the Company are subject
to rights of way for railroads, pipe lines, highways, pole
lines and other similar easements and to minor defects and
encumbrances. In the opinion of such counsel, the Company has
satisfactory title to its properties for use in its business,
and such liens, reservations, defects, rights of way and
encumbrances as may exist do not and will not materially
interfere with the use of such properties.
Examinations of title to land acquired in fee by the
Company or Wisconsin Michigan Power Company ("Wisconsin
Michigan"), a former subsidiary which was
<PAGE> 9
-9-
merged into the Company in 1977, were made at the time of
acquisition of such land by the Company or Wisconsin Michigan
and examinations of title to land on which permanent structures
or transmission lines of over 66,000 volts are located pursuant
to easements or other rights were made at the time of acqui-
sition of such rights by the Company or Wisconsin Michigan.
Additionally, examinations of title to property owned in fee on
which major improvements are located are made on a periodic
basis. In the case of electric lines of 66,000 volts or less
and steam mains the Company or Wisconsin Michigan obtained,
from the apparent owners of the land involved, agreements
granting the necessary easements and rights of way. In most
cases no detailed examination of the title of such owners has
been made. A substantial part of the lines of the Company
located on land owned by others has been in use by it or
Wisconsin Michigan for more than 20 years, the period of the
statute of limitations in Wisconsin and Michigan being 20 years
(under certain circumstances, 10 years) and 15 years,
respectively, and no adverse claims have been made with respect
thereto. In the opinion of such counsel, the Company possesses
the power of eminent domain with respect to its present utility
operations;
(v) the Company conducts its business under valid
franchises, permits and licenses which contain no burdensome
restrictions and which are adequate for the business of the
Company in the territories which it serves, except that the
Company has no franchise in several small areas where, for the
most part, the Company is serving certain customers at the
request of other companies who have franchises in those areas;
(vi) the Indenture has been duly (i) recorded in each of
the counties in Wisconsin and Michigan in which any of the real
properties of the Company are situated, (ii) filed in the
office of The Secretary of State of Michigan and (iii) filed
for recording with the Interstate Commerce Commission of the
United States;
(vii) the Indenture constitutes, and the Securities are
secured equally and ratably with all bonds
<PAGE> 10
-10-
now outstanding and bonds which may hereafter be issued under
the Indenture by, a valid and direct first lien on
substantially all of the fixed properties and interests therein
owned and all franchises held by the Company at the date of
such opinion, subject to: (i) the exceptions set forth in the
granting clauses of the Indenture; (ii) existing leases, other
than those which by their terms are subordinate to the lien of
the Indenture; (iii) existing easements for streets, rights of
way and railroad purposes, permitted liens as defined in the
Indenture, and certain exceptions and reservations in the
instruments by which the Company acquired title to its
properties, none of which, in the opinion of such counsel,
materially affects the Company's title to, or its right to use,
such properties; and (iv) the prior lien of the Trustee for its
compensation, expenses and liabilities. The Indenture will
constitute a valid and direct first lien on all property of the
character above referred to hereafter acquired by the Company
subject, however, to any liens, charges or encumbrances
existing thereon at the time of acquisition, to liens for taxes
and assessments and to any rights of creditors, purchasers or
others having superior equities which may attach prior to the
recording or filing of an appropriate supplemental indenture
subjecting such after-acquired property to the lien of the
Indenture;
(viii) there is no pending legal proceeding or, to the
best knowledge of such counsel (after due inquiry), threatened
action, suit or other legal proceeding before any court or
governmental agency, authority, or body or any arbitrator
involving the Company, of a character required to be disclosed
in the Registration Statement which is not adequately disclosed
in the Final Prospectus; there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated by reference in the
Final Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
<PAGE> 11
-11-
(ix) the Registration Statement and any amendments
thereto have become effective under the Act; no stop order
suspending the effectiveness of the Registration Statement, as
amended, has been issued, no proceedings for that purpose have
been instituted or, to the best knowledge of such counsel,
threatened, and the Registration Statement, the Final
Prospectus and each amendment thereof or supplement thereto as
of their respective effective or issue dates (other than the
financial statements and other financial and statistical
information contained or incorporated by reference therein as
to which such counsel need express no opinion) on their face
complied as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no reason to
believe that the Registration Statement, or any amendment
thereof, at the time it became effective and at the date of
this Agreement, 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 Final Prospectus, as amended or
supplemented, includes any untrue statement of a material fact
or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(x) this Agreement has been duly authorized, executed
and delivered by the Company;
(xi) all requisite approvals of the Public Service
Commission of Wisconsin ("PSCW") and the Michigan Public
Service Commission ("MPSC") for the execution and delivery of
the Indenture and the issuance and sale by the Company of the
Securities to the Underwriters under this Agreement have been
obtained; the Securities have been issued and sold to the
Underwriters by the Company in conformity with the orders of
such Commissions issued with respect thereto; and such counsel
knows of no other approvals of regulatory authorities required
in connection with such matters, other than approvals which may
be required under blue sky or state securities laws;
<PAGE> 12
-12-
(xii) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under the Restated Articles of Incorporation or Bylaws of the
Company, as amended, or the terms of any indenture or other
agreement or instrument to which the Company is a party or
bound, or any law, rule, order, decision, judgment or
regulation applicable to the Company of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company;
(xiii) no holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement; and
(xiv) each of the Company and Wisconsin Energy
Corporation ("Wisconsin Energy") is exempt from the provisions
of the Public Utility Holding Company Act of 1935, as amended
(the "Public Utility Holding Company Act"), except Section
9(a)(2) thereof relating to the acquisition of securities of
other public utility companies.
In rendering such opinion such counsel may rely (A) as to
matters of Michigan law relating to authority to do business and regulatory
approval for the Securities in Michigan upon the opinion of Messrs. Loomis,
Ewert, Parsley, Davis & Gotting, P.C., Michigan counsel to the
Company, furnished to the Underwriters; and (B) as to matters of fact, to
the extent he deems proper, on certificates of responsible officers of the
Company, the Trustee and public officials.
(c) The Company shall have furnished to the Underwriters the
opinion of Quarles & Brady, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified under the
Trust Indenture Act, and constitutes a valid instrument legally
binding upon the Company; the Securities have been duly
authorized by all necessary corporate action of the Company,
have been duly issued (assuming that the Securities have been
duly authenticated by the Trustee, which fact
<PAGE> 13
-13-
such counsel need not verify by an inspection of the
Securities), constitute legal, valid and binding obligations of
the Company enforceable in accordance with their terms
(subject, as to enforcement, to the qualifications set forth in
the next sentence) and are entitled to the benefits and
security of the Indenture. The opinion that the Securities are
enforceable in accordance with their terms is subject to: (i)
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect; (ii) general equity principles; and (iii)
the qualification that certain of the remedial provisions in
the Indenture may be limited or rendered unenforceable under
applicable laws and judicial decisions, including, but not
limited to, the provisions regarding right of possession,
assignment of rents without a receiver, power of sale, and
waiver of the right of redemption, but that this should not
materially interfere with the practical realization of the
security intended to be provided by the Indenture;
(ii) the Company's Registration Statements on Form S-3
(File Nos. 33-49199, and 33-51749) relating to the Securities
have become effective under the Act and, to the best of the
knowledge of such counsel, no stop order proceedings with
respect thereto are pending or threatened under Section 8(d) of
the Act;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company;
(iv) all requisite approvals of the PSCW and the MPSC
for the execution and delivery of the Indenture and the
issuance and sale by the Company of the Securities to the
Underwriters under this Agreement have been obtained; the
Securities have been issued and sold to the Underwriters by the
Company in conformity with the orders of such Commissions
issued with respect thereto; and such counsel know of no other
approvals of regulatory authorities required in connection with
such matters, other than approvals which may be required under
blue sky or state securities laws;
(v) the Securities conform as to legal matters in all
material respects to the description thereof
<PAGE> 14
-14-
in the Final Prospectus insofar as relating to provisions of
the Indenture and the Bonds referred to therein; and
(vi) the Registration Statement, when it became
effective, and the Final Prospectus, as of the date of the
Prospectus Supplement, appeared on their face to comply as to
form, in all material respects, with the requirements of the
Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder and further that
nothing came to the attention of such counsel in the course of
their representation of the Company which has caused such
counsel to believe that the Registration Statement, when it
became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading or that the Final Prospectus, on the
date of the Prospectus Supplement and on the Closing Date, con-
tained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading. Such opinion may state that
such counsel have not independently verified, do not pass upon
and do not assume any responsibility for the accuracy, com-
pleteness or fairness of the statements contained in the
Registration Statement and Final Prospectus except for those
made under the captions "Description of New Bonds" in the Basic
Prospectus and "Certain Terms of the New Bonds of this Series"
and "Underwriting" in the Prospectus Supplement insofar as they
relate to the provisions of documents therein described and
that they do not express any opinion or belief as to the
financial statements or other financial data or statistical
information contained or incorporated by reference in the
Registration Statement, the Basic Prospectus or the Prospectus
Supplement, as to the incorporation of the Company, franchise
matters, questions of title or the lien of the Indenture, or as
to the Statement of Eligibility on Form T-1 of the Trustee.
In rendering such opinion or opinions, such counsel may rely
(A) as to [all] matters of Michigan law and the exempt status of the Company
and Wisconsin Energy under the Public
<PAGE> 15
-15-
Utility Holding Company Act upon the opinion of Walter T. Woelfle, Esq., James
D. Zakrajsheck, Esq. or A. William Finke, Esq.; (B) as to [all] matters of
Michigan law relating to regulatory approval for the Securities in Michigan
upon the opinion of Loomis, Ewert, Parsley, Davis & Gotting, P.C., Michigan
counsel to the Company, furnished to you; and (C) as to matters of fact, to
the extent they deem proper on certificates of responsible officers of the
Company, the Trustee and public officials, and may state that they are not
passing upon the incorporation of the Company, its franchises, matters
relating to the title of the Company to the properties purported to be owned
by it, or the lien of the Indenture on property now owned or hereafter
acquired by the Company.
(d) The Underwriters shall have received from Cahill Gordon &
Reindel, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, and other related matters as you may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
In rendering such opinion such counsel may rely (A) as to [all]
matters of Wisconsin and Michigan law and the exempt status of the Company
and Wisconsin Energy under the Public Utility Holding Company Act upon the
opinion of Walter T. Woelfle, Esq., James D. Zakrajsheck, Esq., or A. William
Finke, Esq.; (B) as to [all] matters of Michigan law relating to regulatory
approval for the Securities in Michigan upon the opinion of Loomis, Ewert,
Ederer, Parsley, Davis & Gotting, P.C., Michigan counsel to the Company,
furnished to you; and (C) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company, the Trustee
and public officials.
(e) The Company shall have furnished to you a certificate of
the Company, signed by the Chairman of the Board or the President and
the principal financial or accounting officer of the Company, dated
the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects
on and as of the Closing Date with
<PAGE> 16
-16-
the same effect as if made on 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;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus, there has been no material adverse change in the
condition (financial or other), earnings, business or
properties of the Company, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus.
(f) At the time this Agreement is executed and at the Closing
Date, Price Waterhouse shall have furnished to the Underwriters a
letter or letters, dated as of the date of this Agreement and the
Closing Date (which may refer to the letter previously delivered to
the Underwriters), in form and substance satisfactory to the
Underwriters, confirming that they are independent accountants within
the meaning of the Act and the applicable published rules and
regulations thereunder, and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated by
reference in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules
and regulations with respect to registration statements on Form
S-3;
(ii) on the basis of procedures (but not an examination
in accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter, consisting
of:
<PAGE> 17
-17-
a) reading the minutes of meetings of the
stockholders and directors of the Company since a
specified date as of the end of the last period for which
they have audited the financial statements of the
Company, as set forth in the minute books, through a
specified date not more than five business days prior to
the date of such letter;
b) reading the unaudited interim financial data
of the Company included or incorporated by reference in
the Registration Statement and the Final Prospectus and
the unaudited interim financial data as of the latest
date made available by the Company; and
c) making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters regarding the specific items for which
representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) any unaudited financial data included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the published rules
and regulations thereunder; and said unaudited financial data
are not stated on a basis substantially consistent with that of
the audited financial statements included or incorporated in
the Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to the date
of the most recent financial statements incorporated in the
Registration Statement and the Final Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of the letter, in the long-term debt of the
Company or capital stock of the Company or decreases in the
stockholders' equity of the Company or any decrease in retained
earnings of the Company as
<PAGE> 18
-18-
compared with the amounts shown on the most recent balance
sheet included or incorporated by reference in the Registration
Statement and the Final Prospectus, or for the period from the
date of the most recent financial statements incorporated by
reference in the Registration Statement and the Final Prospec-
tus to the date of the latest available unaudited consolidated
financial data of the Company there were any decreases, as
compared with the corresponding period in the preceding year,
in Operating Revenues, Operating Income or Net Income of the
Company, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by you; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company subject to its system of internal accounting controls)
set forth in the Registration Statement, as amended, and the
Final Prospectus, as amended or supplemented, and in Exhibit 12
to the Registration Statement, including the information
included under the captions "Capitalization" in the Final
Prospectus or "Certain Summary Financial Information" or
"Recent Developments" in the Basic Prospectus and the Final
Prospectus, or included or incorporated by reference in Items
1, 3, 5, 6, 7 and 11 of the Company's annual report on Form
10-K incorporated therein or in "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in any of the Company's quarterly
reports on Form 10-Q incorporated by reference therein, agrees
with the accounting records of the Company, excluding any
question of legal interpretation.
(g) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (f) of
this Section 6 or (ii) any change, or any development involving a
prospective change, in or
<PAGE> 19
-19-
affecting particularly the business or properties of the Company the
effect of which, in any case referred to in clause (i) or (ii) above,
is, in your judgment, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration
Statement and the Final Prospectus.
(h) Subsequent to the execution of this Agreement, there
shall not have been any decrease in the ratings of any of the
Company's debt securities by Moody's Investors Service, Inc., or
Standard & Poor's Corporation.
(i) Prior to the Closing Date, the Company shall have
furnished to you such further information, certificates and documents
as you may reasonably request.
(j) The issuance and sale of the Securities as contemplated
in this Agreement and the Final Prospectus shall have been duly
authorized and approved by orders of the PSCW and the MPSC; such
orders shall be in full force and effect at the Closing Date and
shall not contain any modifications from their form at the date
hereof not reasonably acceptable to you; and no action, authorization
or approval of any other regulatory authority or court shall then be
required in connection with the issuance and sale by the Company of
the Securities.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you, this Agreement and
all the obligations of the Underwriters hereunder may be cancelled by you
at, or at any time prior to, the Closing Date. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph
confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof or any
condition to the obligations of the Company in Section 10 hereof is not
satisfied, because of any termination pursuant to Section 11 or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision
<PAGE> 20
-20-
hereof, other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters, severally, upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by the Underwriters in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus or the Final Prospectus, any Preliminary Final Prospectus or in
any amendment thereof or supplement thereto, or arise out of or are based
upon 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, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of the Underwriter specifically for use in connection with the
preparation thereof and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities which are the subject thereof if such person did
not receive a copy of the Final Prospectus (or the Final Prospectus, as
amended or supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of the Securities to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Basic
<PAGE> 21
-21-
Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus, as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter, furnished to
the Company by or on behalf of such Underwriter, specifically for use in
the preparation of the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section 8. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this
<PAGE> 22
-22-
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with
the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel, approved by you in the case of paragraph (a) of this Section 8,
representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) to which the Company and one or more of the Underwriters may be
subject in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
bears to the sum of such discount and the purchase price of the Securities
and the Company is responsible for the balance; provided, however, that (y)
in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased hereunder and (z) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of either the Act or
the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement
<PAGE> 23
-23-
and each director of the Company shall have the same rights to contribution
as the Company, subject in each case to clauses (y) and (z) of this
paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d). This contribution
agreement will be in addition to any liability which the Company or any
Underwriter may otherwise have.
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their names
in Schedule II hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding seven days, as you
shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
<PAGE> 24
-24-
10. Conditions to the Obligations of the Company. The
obligation of the Company to sell the Securities shall be subject to the
condition that the issuance and sale of the Securities as contemplated in
this Agreement and the Final Prospectus shall have been duly authorized and
approved by orders of the PSCW and MPSC; such orders shall be in full force
and effect at the Closing Date and shall not contain any modification from
their form at the date hereof not reasonably acceptable to the Company; and
no authorization or approval of any other regulatory authority shall then
be required in connection with the issuance and sale by the Company of the
Securities.
11. Termination. This Agreement shall be subject to
termination in your absolute discretion by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time
(i) trading in the common stock of Wisconsin Energy Corporation shall have
been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange; (ii) a banking moratorium shall have been declared either by
federal or New York State authorities; or (iii) there shall have occurred
any outbreak or material escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis
the effect of which on the financial markets of the United States is such
as to make it, in your judgment, impracticable to market the Securities.
12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
the Company or any of the officers, directors or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment
for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters will be
mailed, delivered or telegraphed and confirmed to you, at the address set
forth in Schedule I; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 231 West Michigan Street, P.O. Box
2046,
<PAGE> 25
-25-
Milwaukee, Wisconsin 53201, attention of the Chief Financial Officer.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute
but one and the same instrument.
<PAGE> 26
-26-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement between the Company and the Underwriters.
Very truly yours,
WISCONSIN ELECTRIC POWER COMPANY
By: ____________________________
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[NAME(S) OF REPRESENTATIVE(S)]
By: _________________________
Authorized Signatory
For itself and the other Underwriters,
if any, named in Schedule II to the
foregoing Agreement.
<PAGE> 27
SCHEDULE I
Underwriting Agreement dated _________, 199_
Registration Statement No. 33-_____
Name and Address of Representative(s):
Date of Supplemental Indenture: ____________, 199_
Title and Certain Terms of Securities:
Title: First Mortgage Bonds, _____% Series due
____________, ____
Principal amount: $__________
Maturity: ____________, ____ (__ years)
Interest Rate: _____%
Interest Payment Dates: ________ and ____________
Sinking Fund:
Redemption provisions:
Purchase price (include accrued interest or amortization, if any):
_____% of principal amount, plus accrued interest, if any, from
____________, 199_ to the date of delivery
Payment for the Securities shall be made in the following form and funds:
<PAGE> 28
-2-
Closing Date, Time and Location:
____________, 199_ at ____ _.M. (_________ time)
Offices of:
Securities delivered to:
<PAGE> 29
SCHEDULE II
Underwriter Amount
$
----------
----------
----------
Total $
==========
<PAGE> 1
EXHIBIT (1)-(2)
WISCONSIN ELECTRIC POWER COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
Dated the date set
forth in Schedule I hereto
To the Underwriters
set forth in
Schedule II hereto
Dear Sirs and Madams:
Wisconsin Electric Power Company, a Wisconsin
corporation (the "Company"), proposes to issue and sell to the
underwriter or underwriters named in Schedule II hereto (the
"Underwriters"), the aggregate principal amount of one or more
new series of its debt securities (the "Securities") set forth
in Schedule I hereto, to be issued pursuant to an indenture
dated as of ________, 1995 (the "Indenture"), between the
Company and Firstar Trust Company, as trustee (the "Trustee").
The terms of the Securities are also set forth in Schedule I
hereto. The terms "you" and "yours" refer to those
Underwriters who sign the Underwriting Agreement either on
behalf of themselves only or on behalf of themselves and as
representative or representatives of the Underwriters (the
"Representatives") named in Schedule II hereto, as the case may
be.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter
that:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the
"Act"). The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on such Form (having the number set forth in
Schedule I hereto), which has become effective, for the
registration under the Act of the Securities. Such
registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule
415(a)(1)(x) under the Act and complies in all other
<PAGE> 2
-2-
material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424(b)(2) or
424(b)(5) under the Act a supplement (the "Prospectus
Supplement") to the form of prospectus included in such
registration statement relating to the Securities and the
plan of distribution thereof and has previously advised
you of all further information (financial and other) with
respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as
amended at the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in
the form in which it appears in the Registration Statement
is hereinafter called the "Basic Prospectus"; and the
Basic Prospectus, as supplemented by the Prospectus
Supplement, in the form in which it shall be filed with
the Commission pursuant to Rule 424(b)(2) or 424(b)(5) is
hereinafter called the "Final Prospectus". Any
preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424(b)(2) or
424(b)(5) is hereinafter called the "Preliminary Final
Prospectus". Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of
this Agreement, or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by
reference.
(b) As of the date hereof, when the Final Prospectus
is first filed or transmitted for filing pursuant to Rule
424(b)(2) or 424(b)(5) under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to
the Registration Statement becomes effective (including
the filing of any document incorporated by reference in
the Registration Statement), when any supplement to the
Final Prospectus is filed with the Commission and at the
Closing Date, (i) the Registration Statement, as then
amended as of any such time, and the Final Prospectus, as
then amended or supplemented as of such time, and the
Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and
<PAGE> 3
-3-
the Exchange Act and the respective rules thereunder and
(ii) neither the Registration Statement, as then amended
as of such time, nor the Final Prospectus, as then amended
or supplemented, as of such time, will contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order
to make the statements therein not misleading; provided,
however, that the Company makes no representations or
warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of
the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the
Underwriter specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal amount of
the Securities set forth opposite such Underwriter's name in
Schedule II hereto, in each case at the purchase price set
forth in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment
for the Securities shall be made at the office, on the date and
at the time specified in Schedule I hereto, which date and time
may be postponed by agreement between you and the Company (such
date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities
shall be made to you for the respective accounts of the several
Underwriters against payment of the purchase price thereof to
or upon the order of the Company by wire transfer or certified
or official bank check or checks payable in immediately
available funds or next-day funds, all as set forth in Schedule
I hereto. Certificates for the Securities shall be registered
in such names and in such denominations as you may request not
less than two full business days in advance of the Closing
Date.
The Company agrees to have the Securities available
for inspection, checking and packaging by you in New York, New
York, not later than 1:00 P.M. on the business day immediately
preceding the Closing Date.
4. Offering by Underwriters. It is understood that
the several Underwriters proposes to offer the Securities for
sale to the public as set forth in the Final Prospectus.
<PAGE> 4
-4-
5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the
Registration Statement or supplement (including the Final
Prospectus or the Basic Prospectus) unless the Company has
furnished to you copies for your review prior to filing
and will not file any such proposed amendment or
supplement to which you reasonably object (except any
filings required to be made pursuant to the Exchange Act
or the rules and regulations thereunder). Subject to the
foregoing sentence, the Company will cause the Final
Prospectus to be filed with the Commission pursuant to
Rule 424(b)(2) or 424(b)(5) or will cause the Final
Prospectus to be transmitted by a means reasonably
calculated to result in filing with the Commission
pursuant to said Rule. The Company will promptly advise
you (i) when the Final Prospectus shall have been
transmitted to the Commission for filing or filed pursuant
to Rule 424(b)(2) or 424(b)(5), (ii) when any amendment to
the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment or
supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or the
initiation or the threatened initiation of any proceeding
for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or the threatened
initiation of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to
the Securities is required to be delivered under the Act,
any event occurs as a result of which the Final Prospectus
as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein in light of
the circumstances under which they were made not
misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus
to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or
omission or an amendment which will effect such
compliance.
<PAGE> 5
-5-
(c) As soon as practicable, the Company will make
generally available to its security holders and to you an
earnings statement or statements of the Company which will
satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Company will furnish to the Underwriters and
counsel for the Underwriters without charge, copies of the
Registration Statement (including exhibits thereto) and
each amendment thereto which shall become effective on or
prior to the Closing Date, the Basic Prospectus and, so
long as delivery of a prospectus by the Underwriters or a
dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus, the Final Prospectus, any
amendments and supplements thereto and documents
incorporated by reference therein as you may reasonably
request. The Company will pay the expenses of printing
all documents relating to the offering of the Securities.
(e) The Company will arrange for the qualification
of the Securities for sale under the laws of such
jurisdictions as you may designate, will maintain such
qualifications in effect so long as required for the
distribution of the Securities and will arrange for the
determination of the legality of the Securities for
purchase by institutional investors; provided, however,
that the Company shall not be required to qualify as a
foreign corporation or to file any consent to service of
process under the laws of any jurisdiction or to comply
with any other requirements deemed by the Company to be
unduly burdensome.
(f) Until the business day following the Closing
Date, the Company will not without your consent offer,
sell or contract to sell, or announce the offering of, any
debt securities covered by the Registration Statement or
any other registration statement filed under the Act.
6. Conditions to the Obligations of the
Underwriters. The obligations of the Underwriters to purchase
the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the
Closing Date, to the accuracy of the statements of the Company
or the Company officers made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to time,
<PAGE> 6
-6-
shall have been issued and no proceedings for that purpose
shall have been instituted or threatened; and the Final
Prospectus shall have been filed or the Company will cause
the Final Prospectus to be transmitted by a means
reasonably calculated to result in filing with the
Commission not later than 5:00 P.M., New York City time,
on the business day following the date hereof.
(b) The Company shall have furnished to the
Underwriters the opinion of Walter T. Woelfle, Esq.,
Director - Legal Services Department of the Company, James
D. Zakrajsheck, Counsel of the Company, or A. William
Finke, Esq., Counsel of the Company, dated the Closing
Date, to the effect that:
(i) the Company has been duly incorporated and
is validly existing as a corporation in active status
under the laws of the State of Wisconsin, with full
corporate power and authority to own its properties
and conduct its business as described in the Final
Prospectus and is duly qualified to do business as a
foreign corporation and is in good standing under the
laws of each jurisdiction which requires such
qualification wherein it owns or leases material
properties or conducts material business;
(ii) the Securities conform as to legal matters
in all material respects to the description thereof
contained in the Final Prospectus;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and the
Trustee, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to
enforcement, to the qualifications set forth in the
next sentence); and the Securities have been duly
authorized by all necessary corporate action of the
Company, executed and authenticated in accordance
with the provisions of the Indenture (assuming that
the Securities have been duly authenticated by the
Trustee, which fact such counsel need not verify by
an inspection of the Securities) and constitute
legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and
enforceable in accordance with their terms (subject,
as to enforcement, to the qualifications set forth in
the next sentence). The opinions that the Indenture
and the Securities are enforceable in accordance with
their terms are subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to
time in effect and general equity principles;
<PAGE> 7
-7-
(iv) the Company conducts its business under
valid franchises, permits and licenses which contain
no burdensome restrictions and which are adequate for
the business of the Company in the territories which
it serves, except that the Company as no franchise in
several small areas where, for the most part, the
Company is serving certain customers at the request
of other companies who have franchises in those
areas;
(v) there is no pending legal proceeding or, to
the best knowledge of such counsel (after due
inquiry), threatened action, suit or other legal
proceeding before any court or governmental agency,
authority, or body or any arbitrator involving the
Company, of a character required to be disclosed in
the Registration Statement which is not adequately
disclosed in the Final Prospectus; there is no
franchise, contract or other document of a character
required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
and the statements included or incorporated by
reference in the Final Prospectus describing any
legal proceedings or material contracts or agreements
relating to the Company fairly summarize such
matters;
(vi) the Registration Statement and any
amendments thereto have become effective under the
Act; no stop order suspending the effectiveness of
the Registration Statement, as amended, has been
issued, no proceedings for that purpose have been
instituted or, to the best knowledge of such counsel,
threatened, and the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto as of their respective effective or issue
dates (other than the financial statements and other
financial and statistical information contained or
incorporated by reference therein as to which such
counsel need express no opinion) on their face
complied as to form in all material respects with the
applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; and such
counsel has no reason to believe that the
Registration Statement, or any amendment thereof, at
the time it became effective and at the date of this
Agreement, 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
Final Prospectus, as amended or supplemented,
includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
<PAGE> 8
-8-
statements therein, in light of the circumstances
under which they were made, not misleading;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) all requisite approvals of the Public
Service Commission of Wisconsin ("PSCW") and the
Michigan Public Service Commission ("MPSC") for the
execution and delivery of the Indenture and the
issuance and sale by the Company of the Securities to
the Underwriters under this Agreement have been
obtained; the Securities have been issued and sold to
the Underwriter by the Company in conformity with the
orders of such Commission issued with respect
thereto; and such counsel knows of no other approvals
of regulatory authorities required in connection with
such matters, other than approvals which may be
required under state securities laws;
(ix) neither the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a
breach of, or constitute a default under the Restated
Articles of Incorporation or Bylaws of the Company,
as amended, or the terms of any indenture or other
agreement or instrument to which the Company is a
party or bound, or any law, rule, order, decision,
judgment or regulation, applicable to the Company of
any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Company;
(x) no holders of securities of the Company
have rights to the registration of such securities
under the Registration Statement; and
(xi) each of the Company and Wisconsin Energy
Corporation ("Wisconsin Energy") is exempt from the
provisions of the Public Utility Holding Company Act
of 1935, as amended (the "Public Utility Holding
Company Act"), except Section 9(a)(2) thereof
relating to the acquisition of securities of other
public utility companies.
In rendering such opinion such counsel may rely
(A) as to matters of Michigan law relating to the
authority to do business and regulatory approval for the
Securities in Michigan upon the opinion of Messrs. Loomis,
Ewert, Parsley, Davis & Gotting, P.C., Michigan counsel to
the Company, furnished to the Underwriters; and (B) as to
matters of fact, to the extent he deems proper, on
<PAGE> 9
-9-
certificates of responsible officers of the Company, the
Trustee and public officials.
(c) The Company shall have furnished to the
Underwriters the opinion of Quarles & Brady, counsel for
the Company, dated the Closing Date, to the effect that:
(i) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly
qualified under the Trust Indenture Act, and
constitutes a valid instrument legally binding upon
the Company; the Securities have been duly authorized
by all necessary corporate action of the Company,
have been duly issued (assuming that the Securities
have been duly authenticated by the Trustee, which
fact such counsel need not verify by an inspection of
the Securities), constitute legal, valid and binding
obligations of the Company entitled to the benefits
of the Indenture and enforceable in accordance with
their terms subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from
time to time in effect and general equity principles;
(ii) the Company's Registration Statement on
Form S-3 relating to the Securities has become
effective under the Act and, to the best of the
knowledge of such counsel, no stop order proceedings
with respect thereto are pending or threatened under
Section 8(d) of the Act;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iv) all requisite approvals of the PSCW and the
MPSC for the execution and delivery of the Indenture
and the issuance and sale by the Company of the
Securities to the Underwriters under this Agreement
have been obtained; the Securities have been issued
and sold to the Underwriters by the Company in
conformity with the orders of such Commission issued
with respect thereto; and such counsel know of no
other approvals of regulatory authorities required in
connection with such matters, other than approvals
which may be required under state securities laws;
(v) the Securities conform as to legal matters
in all material respects to the description thereof
in the Final Prospectus insofar as relating to
provisions of the Indenture and the Debt Securities
referred to therein; and
(vi) the Registration Statement, when it became
effective, and the Final Prospectus, as of the date
<PAGE> 10
-10-
of the Prospectus Supplement, appeared on their face
to comply as to form, in all material respects, with
the requirements of the Act, the Trust Indenture Act
and the applicable rules and regulations of the
Commission thereunder and further that nothing came
to the attention of such counsel in the course of
their representation of the Company which has caused
such counsel to believe that the Registration
Statement, when it became effective, contained any
untrue statement of a material fact or omitted to
state any material fact required to be stated therein
or necessary in order to make the statements therein
not misleading or that the Final Prospectus, on the
date of the Prospectus Supplement and on the Closing
Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary
in order to make the statements therein, in light of
the circumstances under which they were made, not
misleading. Such opinion may state that such counsel
have not independently verified, do not pass upon and
do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained
in the Registration Statement and Final Prospectus
except for those made under the captions "Description
of Securities" in the Basic Prospectus and "Certain
Terms of the Debentures" and "Underwriting" in the
Prospectus Supplement insofar as they relate to the
provisions of documents therein described and that
they do not express any opinion or belief as to the
financial statements or other financial data or
statistical information contained or incorporated by
reference in the Registration Statement, the Basic
Prospectus or the Prospectus Supplement, as to the
incorporation of the Company or franchise matters or
as to the Statement of Eligibility on Form T-1 of the
Trustee.
In rendering such opinion or opinions, such counsel
may rely (A) as to [all] matters of Michigan law and the
exempt status of the Company and Wisconsin Energy under
the Public Utility Holding Company Act, upon the opinion
of Walter T. Woelfle, Esq., James D. Zakrajsheck, Esq., or
A. William Finke, Esq.; (B) as to [all] matters of
Michigan law relating to regulatory approval for the
Securities in Michigan upon the opinion of Loomis, Ewert,
Parsley, Davis & Gotting, P.C., Michigan counsel to the
Company, furnished to you; and (C) as to matters of fact,
to the extent they deem proper on certificates of
responsible officers of the Company, the Trustee and
public officials, and may state that they are not passing
upon the incorporation of the Company or its franchises.
(d) The Underwriters shall have received from Cahill
Gordon & Reindel, counsel for the Underwriters, such
<PAGE> 11
-11-
opinion or opinions, dated the Closing Date, with respect
to the issuance and sale of the Securities, the Indenture,
and other related matters as you may reasonably require,
and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them
to pass upon such matters.
In rendering such opinion such counsel may rely (A)
as to all matters of Wisconsin and Michigan law and the
exempt status of the Company and Wisconsin Energy under
the Public Utilities Holding Company Act, upon the opinion
of Walter T. Woelfle, Esq., James D. Zakrajsheck, Esq., or
A. William Finke, Esq.; (B) as to [all] matters of
Michigan law relating to regulatory approval for the
Securities in Michigan upon the opinion of Loomis, Ewert,
Parsley, Davis & Gotting, P.C., Michigan counsel to the
Company, furnished to you; and (C) as to matters of fact,
to the extent they deem proper, on certificates of
responsible officers of the Company, the Trustee and
public officials.
(e) The Company shall have furnished to you a
certificate of the Company, signed by the Chairman of the
Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date,
to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on 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;
(ii) no stop order suspending the effectiveness
of the Registration Statement, as amended, has been
issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in
the Final Prospectus, there has been no material
adverse change in the condition (financial or other),
earnings, business or properties of the Company,
whether or not arising from transactions in the
ordinary course of business, except as set forth in
or contemplated in the Final Prospectus.
<PAGE> 12
-12-
(f) At the time this Agreement is executed and at
the Closing Date, Price Waterhouse shall have furnished to
the Underwriters a letter or letters, dated as of the date
of this Agreement and the Closing Date (which may refer to
the letter previously delivered to the Underwriters), in
form and substance satisfactory to the Underwriters,
confirming that they are independent accountants within
the meaning of the Act and the applicable published rules
and regulations thereunder, and stating in effect that:
(i) in their opinion the audited financial
statements included or incorporated by reference in
the Registration Statement and the Final Prospectus
and reported on by them comply as to form in all
material respects with the applicable accounting
requirements of the Act and the Exchange Act and the
related published rules and regulations with respect
to registration statements on Form S-3;
(ii) on the basis of procedures (but not an
examination in accordance with generally accepted
auditing standards) which would not necessarily
reveal matters of significance with respect to the
comments set forth in such letter, consisting of:
a) reading the minutes of meetings of the
stockholders and directors of the Company since
a specified date as of the end of the last
period for which they have audited the financial
statements of the Company, as set forth in the
minute books, through a specified date not more
than five business days prior to the date of
such letter;
b) reading the unaudited interim
financial data of the Company included or
incorporated by reference in the Registration
Statement and the Final Prospectus and the
unaudited interim financial data as of the
latest date made available by the Company; and
c) making inquiries of certain officials
of the Company who have responsibility for
financial and accounting matters regarding the
specific items for which representations are
requested below;
nothing has come to their attention as a result of
the foregoing procedures that caused them to believe
that:
(1) any unaudited financial data included or
incorporated by reference in the Registration
Statement and the Final Prospectus do not comply as
<PAGE> 13
-13-
to form in all material respects with applicable
accounting requirements of the Exchange Act as it
applies to Form 10-Q and the published rules and
regulations thereunder; and said unaudited financial
data are not stated on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to
the date of the most recent financial data
incorporated in the Registration Statement and the
Final Prospectus, there were any changes, at a
specified date not more than five business days prior
to the date of the letter, in the long-term debt of
the Company or capital stock of the Company or
decreases in the stockholder's equity of the Company
or any decrease in retained earnings of the Company
as compared with the amounts shown on the most recent
balance sheet incorporated by reference in the
Registration Statement and the Final Prospectus, or
for the period from the date of the most recent
financial data incorporated by reference in the
Registration Statement and the Final Prospectus to
the date of the latest available unaudited
consolidated financial data of the Company there were
any decreases, as compared with the corresponding
period in the preceding year, in Operating Revenues,
Operating Income or Net Income of the Company, except
in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by you; and
(iii) they have performed certain other specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company subject to
its system of internal accounting controls) set forth
in the Registration Statement, as amended, and the
Final Prospectus, as amended or supplemented, and in
Exhibit 12 to the Registration Statement, including
the information included under the captions
"Capitalization" in the Final Prospectus or "Certain
Summary Financial Information" or "Recent
Developments" in the Basic Prospectus and the Final
Prospectus, or included or incorporated by reference
in Items 1, 3, 5, 6, 7 and 11 of the Company's annual
report on Form 10-K incorporated therein or in
"Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or
<PAGE> 14
-14-
incorporated in any of the Company's quarterly
reports on Form 10-Q incorporated by reference
therein, agrees with the accounting records of the
Company, excluding any question of legal
interpretation.
(g) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or
affecting particularly the business or properties of the
Company the effect of which, in any case referred to in
clause (i) or (ii) above, is, in your judgment, so
material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery
of the Securities as contemplated by the Registration
Statement and the Final Prospectus.
(h) Subsequent to the execution of this Agreement,
there shall not have been any decrease in the ratings of
any of the Company's debt securities by Moody's Investors
Service, Inc., or Standard & Poor's Corporation.
(i) Prior to the Closing Date, the Company shall
have furnished to you such further information,
certificates and documents as you may reasonably request.
(j) The issuance and sale of the Securities as
contemplated in this Agreement and the Final Prospectus
shall have been duly authorized and approved by orders of
the PSCW and the MPSC; such orders shall be in full force
and effect at the Closing Date and shall not contain any
modifications from their form at the date hereof not
reasonably acceptable to you; and no action, authorization
or approval of any other regulatory authority or court
shall then be required in connection with the issuance and
sale by the Company of the Securities.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement
shall not be in all material respects reasonably satisfactory
in form and substance to you, this Agreement and all the
obligations of the Underwriter hereunder may be cancelled by
you at, or at any time prior to, the Closing Date. Notice of
such cancellation shall be given to the Company in writing or
by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the
sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters
<PAGE> 15
-15-
set forth in Section 6 hereof or any condition to the
obligations of the Company in Section 10 hereof is not
satisfied, because of any termination pursuant to Section 11 or
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any
provision hereof, other than by reason of a default by the
Underwriters, the Company will reimburse the Underwriters upon
demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been
incurred by the Underwriters in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under
the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Securities
as originally filed or in any amendment thereof, or in the
Basic Prospectus or the Final Prospectus, any Preliminary Final
Prospectus or in any amendment thereof or supplement thereto,
or arise out of or are based upon 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, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i)
the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter
specifically for use in connection with the preparation thereof
and (ii) such indemnity with respect to the Basic Prospectus or
any Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus, as amended or
supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of the
Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final
<PAGE> 16
-16-
Prospectus (or the Final Prospectus, as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter agrees to indemnify and hold
harmless the Company, each of its directors, each of its
officers who signs the Registration Statement and each person
who controls the Company within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter,
furnished to the Company by or on behalf of the Underwriter,
specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that
if the defendants in any such action include both the
indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there
may be legal defenses available to it or other indemnified
parties which are different from or additional to those
available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense
of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified
party shall have employed separate counsel in connection with
the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by you in
<PAGE> 17
-17-
the case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in paragraph (a) of this Section 8 is due in
accordance with its terms but is for any reason held by a court
to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to
the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the
Company and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the
underwriting discount bears to the sum of such discount and the
purchase price of the Securities and the Company is responsible
for the balance; provided, however, that (y) in no case shall
any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities)
be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased hereunder and
(z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act shall have the same rights
to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the
Company, subject in each case to clauses (y) and (z) of this
paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action,
suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or
parties under this paragraph (d), notify such party or parties
from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than
under this paragraph (d). This contribution agreement will be
<PAGE> 18
-18-
in addition to any liability which the Company or any
Underwriter may otherwise have.
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names of
all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters
do not purchase all the Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as
set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as you
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained
in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. Conditions to the Obligations of the Company.
The obligation of the Company to sell the Securities shall be
subject to the condition that the issuance and sale of the
Securities as contemplated in this Agreement and the Final
Prospectus shall have been duly authorized and approved by the
order of the PSCW and MPSC; such order shall be in full force
and effect at the Closing Date and shall not contain any
modification from its form at the date hereof not reasonably
acceptable to the Company; and no authorization or approval of
any other regulatory authority shall then be required in
connection with the issuance and sale by the Company of the
Securities.
11. Termination. This Agreement shall be subject to
termination in your absolute discretion by notice given to the
Company prior to delivery of and payment for the Securities, if
prior to such time (i) trading in the common stock of Wisconsin
Energy Corporation shall have been suspended by the Commission
or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been
<PAGE> 19
-19-
suspended or limited or minimum prices shall have been
established on such Exchange; (ii) a banking moratorium shall
have been declared either by federal or New York State
authorities; or (iii) there shall have occurred any outbreak or
material escalation of hostilities or declaration by the United
States of a national emergency or war or other calamity or
crisis the effect of which on the financial markets of the
United States is such as to make it, in your judgment,
impracticable to market the Securities.
12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriter set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be
in writing and effective only on receipt, and, if sent to the
Underwriters will be mailed, delivered or telegraphed and
confirmed to you, at the address set forth in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 231 West Michigan Street,
P.O. Box 2046, Milwaukee, Wisconsin 53201, attention of the
Chief Financial Officer.
14. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of
New York.
<PAGE> 20
-20-
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the
Company and the Underwriters.
Very truly yours,
WISCONSIN ELECTRIC POWER COMPANY
By:
------------------------------
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[NAME(S) OF REPRESENTATIVE(S)]
By:
---------------------------
Authorized Signatory
For itself and the other Under-
writers, if any, named in
Schedule II to the foregoing
Agreement.
<PAGE> 21
SCHEDULE I
Underwriting Agreement dated _________, 199_
Registration Statement No. 33-_______
Name and Address of Underwriter(s):
Title and Certain Terms of Securities:
Title: ______% ________ due _______,_____
Principal amount: $_________
Maturity: ________, ____ (__ years)
Interest Rate: ______%
Interest Payment Dates: _________ and _________
Sinking Fund:
Redemption provisions:
Purchase Price (include accrued interest or amortization,
if any): ______% of principal amount, plus accrued
interest from _______, 199_ to the date of delivery
Payment for the Securities shall be made in the following form
and funds:
Closing Date, Time and Location:
________, 199_ ____ _.M. (_________ time)
Offices of:
Securities delivered to:
<PAGE> 22
SCHEDULE II
Underwriter Amount
- ----------- ------
$
_________
Total $_________
<PAGE> 1
EXHIBIT (4)-(41)
==============================================================================
WISCONSIN ELECTRIC POWER COMPANY
TO
FIRSTAR TRUST COMPANY
As Trustee
______________
_____________ SUPPLEMENTAL INDENTURE
DATED ________________ 19____
______________
First Mortgage Bonds,
_____% Series due ______________
==============================================================================
<PAGE> 2
WISCONSIN ELECTRIC POWER COMPANY
______________ Supplemental Indenture dated _________ 19____
_______________
TABLE OF CONTENTS*
-----------------
PAGE
----
PARTIES ........................................................
RECITALS .......................................................
GRANTING CLAUSE ................................................
HABENDUM .......................................................
EXCEPTIONS AND RESERVATIONS ....................................
GRANT IN TRUST .................................................
GENERAL COVENANT ...............................................
ARTICLE I.
DESCRIPTION OF SERIES _____ BONDS.
Sec. 1. General description of Series _____ Bonds..............
Sec. 2. Denominations of Series _____ Bonds....................
Sec. 3. Form of Series _____ Bonds.............................
Form of Trustee's Certificate......................
Remainder of text of Series _____ Bonds............
Sec. 4. Execution and form of temporary Series _____ Bonds.....
ARTICLE II.
ISSUE OF SERIES _____ BONDS.
Sec. 1. Limitation as to principal amount .....................
Sec. 2. Initial issue of $___________ principal amount of
Series _____ Bonds.................................
ARTICLE III.
REDEMPTION.
[NO REDEMPTION PRIOR TO MATURITY; NO SINKING FUND.]
Sec. 1. Optional redemption of Series _____ Bonds..............
Sec. 2. Notice of redemption...................................
[Alternate language if Bonds are not subject to redemption:
Series _____ Bonds not subject to optional redemption
or sinking fund]..............................................
- ----------------------
*Note: The Table of Contents is not part of the Supplemental
Indenture and should not be considered as such. It is
included only for purposes of convenience.
<PAGE> 3
ii
PAGE
----
ARTICLE IV.
ADDITIONAL PARTICULAR COVENANTS OF THE COMPANY.
Sec. 1. Restrictions on payment of dividends on, or
acquisition of, Common Stock of the Company .....
Sec. 2. Definitions of "restricted payment" and
"restricted payment on its Common Stock" ........
Sec. 3. Title to mortgaged property ...........................
ARTICLE V.
SECTION 1 OF ARTICLE IV LIMITED.
Section 1 of Article IV to be binding only so long as Series
_____ Bonds are outstanding...................................
ARTICLE VI.
EFFECT OF TRUST INDENTURE REFORM ACT OF 1990.
Text of Original Indenture not physically changed to
reflect effect of Trust Indenture Reform Act of
1990..........................................................
ARTICLE VII.
THE TRUSTEE.
Acceptance of trusts by the Trustee ............................
Trustee not responsible for validity of _____________
Supplemental Indenture .......................................
ARTICLE VIII.
MISCELLANEOUS PROVISIONS.
Meanings of terms in _____________ Supplemental Indenture.......
Date of execution ..............................................
Execution of _____________ Supplemental Indenture in
counterparts .................................................
TESTIMONIUM ....................................................
EXECUTION ......................................................
COMPANY'S ACKNOWLEDGMENT .......................................
TRUSTEE'S ACKNOWLEDGMENT .......................................
MORTGAGOR'S AFFIDAVIT ..........................................
SCHEDULE A.
DESCRIPTION OF PROPERTIES.
Parcels of Real Estate .........................................
.........................................
<PAGE> 4
SUPPLEMENTAL INDENTURE, dated the ____ day of _________, Nineteen hundred and
____________ (19___) made by and between WISCONSIN ELECTRIC POWER COMPANY, a
corporation organized and existing under the laws of the State of Wisconsin
(hereinafter called the "Company"), party of the first part, and FIRSTAR TRUST
COMPANY (formerly First Wisconsin Trust Company), a corporation organized and
existing under the laws of the State of Wisconsin (hereinafter called the
"Trustee"), as Trustee under the Mortgage and Deed of Trust dated October 28,
1938, hereinafter mentioned, party of the second part;
WHEREAS, the Company has heretofore executed and delivered to the Trustee its
Mortgage and Deed of Trust dated October 28, 1938, as amended June 1, 1946,
May 1, 1952, April 1, 1958, December 1, 1980, January 15, 1988, October 1,
1992 and November 1, 1992 (said Mortgage and Deed of Trust, as so amended,
being hereinafter sometimes referred to as the "Original Indenture" and,
together with all supplemental indentures thereto, being sometimes referred to
herein collectively as the "Indenture"), to secure the payment of the
principal of and the interest and premium, if any, on all Bonds at any time
issued and outstanding thereunder, and to declare the terms and conditions
upon which Bonds are to be issued thereunder; and indentures supplemental
thereto dated October 28, 1938, June 1, 1946, March 1, 1949, June 1, 1950,
May 1, 1952, May 1, 1954, April 15, 1956, April 1, 1958, November 15, 1960,
November 1, 1966, November 15, 1967, May 15, 1968, May 15, 1969, November 1,
1969, July 15, 1976, January 1, 1978, May 1, 1978, May 15, 1978, August 1,
1979, November 15, 1979, April 15, 1980, December 1, 1980, September 15, 1985,
December 15, 1986, January 15, 1988, April 15, 1988, September 1, 1989,
October 1, 1991, December 1, 1991, August 1, 1992, October 1, 1992,
November 1, 1992, December 15, 1992, January 15, 1993, March 15, 1993,
August 1, 1993, and September 15, 1993, respectively, have heretofore been
entered into between the Company and the Trustee; and
WHEREAS, Bonds have been issued by the Company under said Mortgage and Deed of
Trust and indentures supplemental thereto prior to the date hereof as follows:
(1) $55,000,000 principal amount of First Mortgage Bonds, 3 1/2%
Series due 1968, which are described in the Supplemental Indenture
dated October 28, 1938, all of which have been redeemed prior to
the date of execution hereof;
(2) $50,000,000 principal amount of First Mortgage Bonds, 2 5/8%
Series due 1976, which are described in the Second Supplemental
Indenture dated June 1, 1946, all of which have been retired for
sinking fund purposes or paid at maturity prior to the date of
execution hereof;
(3) $10,000,000 principal amount of First Mortgage Bonds, 2 7/8%
Series due 1979, which are described in the Third Supplemental
Indenture dated March 1, 1949, all of which have been retired for
sinking fund purposes or paid at maturity prior to the date of
execution hereof;
(4) $15,000,000 principal amount of First Mortgage Bonds, 2 3/4%
Series due 1980, which are described in the Fourth Supplemental
Indenture dated June 1, 1950, all of which have been retired for
sinking fund purposes or paid at maturity prior to the date of
execution hereof;
<PAGE> 5
2
(5) $12,500,000 principal amount of First Mortgage Bonds, 3 1/4%
Series due 1982, which are described in the Fifth Supplemental
Indenture dated May 1, 1952, all of which have been retired for
sinking fund purposes or paid at maturity prior to the date of
execution hereof;
(6) $20,000,000 principal amount of First Mortgage Bonds, 3 1/8%
Series due 1984, which are described in the Sixth Supplemental
Indenture dated May 1, 1954, all of which have been retired for
sinking fund purposes or paid at maturity prior to the date of
execution hereof;
(7) $30,000,000 principal amount of First Mortgage Bonds, 3 7/8%
Series due 1986, which are described in the Seventh Supplemental
Indenture dated April 15, 1956, all of which have been retired for
sinking fund purposes or paid at maturity prior to the date of
execution hereof;
(8) $30,000,000 principal amount of First Mortgage Bonds, 4 1/8%
Series due 1988, which are described in the Eighth Supplemental
Indenture dated April 1, 1958, all of which have been retired for
sinking fund purposes or paid at maturity prior to the date of
execution hereof;
(9) $30,000,000 principal amount of First Mortgage Bonds, 5% Series
due 1990, which are described in the Ninth Supplemental Indenture
dated November 15, 1960, all of which have been retired for
sinking fund purposes or paid at maturity prior to the date of
execution hereof;
(10) $30,000,000 principal amount of First Mortgage Bonds, 5 7/8%
Series due 1996, which are described in the Tenth Supplemental
Indenture dated November 1, 1966, all of which have been retired
for sinking fund purposes or redeemed prior to the date of
execution hereof;
(11) $40,000,000 principal amount of First Mortgage Bonds, 6 7/8%
Series due 1997, which are described in the Eleventh Supplemental
Indenture dated November 15, 1967, all of which have been retired
for sinking fund purposes or redeemed prior to the date of
execution hereof;
(12) $35,000,000 principal amount of First Mortgage Bonds, 6 7/8%
Series due 1998, which are described in the Twelfth Supplemental
Indenture dated May 15, 1968, all of which have been retired for
sinking fund purposes or redeemed prior to the date of execution
hereof;
(13) $40,000,000 principal amount of First Mortgage Bonds, 7 1/4%
Series due 1999, which are described in the Thirteenth
Supplemental Indenture dated May 15, 1969, all of which have been
retired for sinking fund purposes or redeemed prior to the date of
execution hereof;
(14) $40,000,000 principal amount of First Mortgage Bonds, 8 3/8%
Series due November 1, 1999, which are described in the Fourteenth
Supplemental Indenture dated November 1, 1969, all of which have
been retired for sinking fund purposes or redeemed prior to the
date of execution hereof;
<PAGE> 6
3
(15) $60,000,000 principal amount of First Mortgage Bonds, 8 3/4%
Series due July 15, 2006, which are described in the Fifteenth
Supplemental Indenture dated July 15, 1976, all of which have been
retired for sinking fund purposes or redeemed prior to the date of
execution hereof;
(16) $25,000,000 principal amount of First Mortgage Bonds, 6.10% Serial
Series 1978A, which are described in the Seventeenth Supplemental
Indenture dated May 1, 1978, all of which remain outstanding at
the date of execution hereof;
(17) $1,000,000 principal amount of First Mortgage Bonds, 6.25% Serial
Series 1978B, which are described in the Seventeenth Supplemental
Indenture dated May 1, 1978, all of which remain outstanding at
the date of execution hereof;
(18) $80,000,000 principal amount of First Mortgage Bonds, 8 7/8%
Series due May 15, 2008, which are described in the Eighteenth
Supplemental Indenture dated May 15, 1978, all of which have been
retired for sinking fund purposes or redeemed prior to the date of
execution hereof;
(19) $12,000,000 principal amount of First Mortgage Bonds, 6.45% Series
1979A, which are described in the Nineteenth Supplemental
Indenture dated August 1, 1979, all of which remain outstanding at
the date of execution hereof;
(20) $4,000,000 principal amount of First Mortgage Bonds, 6.45% Series
1979B, which are described in the Nineteenth Supplemental
Indenture dated August 1, 1979, all of which remain outstanding at
the date of execution hereof;
(21) $10,000,000 principal amount of First Mortgage Bonds, 6.50% Serial
Series 1979C, which are described in the Nineteenth Supplemental
Indenture dated August 1, 1979, all of which remain outstanding at
the date of execution hereof;
(22) $50,000,000 principal amount of First Mortgage Bonds, 10.2% Series
due November 15, 1982, which are described in the Twentieth
Supplemental Indenture dated November 15, 1979, all of which have
been paid at maturity prior to the date of execution hereof;
(23) $70,000,000 principal amount of First Mortgage Bonds, 11.40%
Series due April 15, 1987, which are described in the Twenty-First
Supplemental Indenture dated April 15, 1980, all of which have
been retired for sinking fund purposes or redeemed prior to the
date of execution hereof;
(24) $80,000,000 principal amount of First Mortgage Bonds, 13 3/4%
Series due December 1, 1986, which are described in the
Twenty-Second Supplemental Indenture dated December 1, 1980, all
of which have been retired for sinking fund purposes or paid at
maturity prior to the date of execution hereof;
<PAGE> 7
4
(25) $100,000,000 principal amount of First Mortgage Bonds, 11 1/2%
Series due September 15, 2015, which are described in the
Twenty-Third Supplemental Indenture dated September 15, 1985, all
of which have been retired for sinking fund purposes or redeemed
prior to the date of execution hereof;
(26) $29,000,000 principal amount of First Mortgage Bonds, 9 3/4%
Series 1985A due September 15, 2015, which are described in the
Twenty-Fourth Supplemental Indenture dated September 15, 1985, all
of which remain outstanding at the date of execution hereof;
(27) $10,000,000 principal amount of First Mortgage Bonds, 9 3/4%
Series 1985B due September 15, 2015, which are described in the
Twenty-Fourth Supplemental Indenture dated September 15, 1985, all
of which remain outstanding at the date of execution hereof;
(28) $7,350,000 principal amount of First Mortgage Bonds, 9 3/4% Series
1985C due September 15, 2015, which are described in the
Twenty-Fourth Supplemental Indenture dated September 15, 1985, all
of which remain outstanding at the date of execution hereof;
(29) $100,000,000 principal amount of First Mortgage Bonds, 8 1/2%
Series due December 15, 2016, which are described in the
Twenty-Fifth Supplemental Indenture dated December 15, 1986, all
of which have been redeemed prior to the date of execution hereof;
(30) $100,000,000 principal amount of First Mortgage Bonds, 9 5/8%
Series due January 15, 2018, which are described in the
Twenty-Sixth Supplemental Indenture dated January 15, 1988, all of
which have been redeemed prior to the date of execution hereof;
(31) $100,000,000 principal amount of First Mortgage Bonds, 9.85%
Series due April 15, 2023, which are described in the
Twenty-Seventh Supplemental Indenture dated April 15, 1988, all of
which have been redeemed prior to the date of execution hereof;
(32) $60,000,000 principal amount of First Mortgage Bonds, 9 1/8%
Series due September 1, 2024, which are described in the
Twenty-Eighth Supplemental Indenture dated September 1, 1989, of
which $3,443,000 principal amount remain outstanding at the date
of execution hereof;
(33) $9,000,000 principal amount of First Mortgage Bonds, 6.85% Series
1991 due October 1, 2021, which are described in the Twenty-Ninth
Supplemental Indenture dated October 1, 1991, all of which remain
outstanding at the date of execution hereof;
(34) $100,000,000 principal amount of First Mortgage Bonds, 8 3/8%
Series due December 1, 2026, which are described in the Thirtieth
Supplemental Indenture dated December 1, 1991, all of which remain
outstanding at the date of execution hereof;
<PAGE> 8
5
(35) $51,000,000 principal amount of First Mortgage Bonds, 6 5/8%
Series due August 1, 1999, which are described in the Thirty-First
Supplemental Indenture dated August 1, 1992, all of which remain
outstanding at the date of execution hereof;
(36) $140,000,000 principal amount of First Mortgage Bonds, 7 1/4%
Series due August 1, 2004, which are described in the
Thirty-Second Supplemental Indenture dated August 1, 1992, all of
which remain outstanding at the date of execution hereof;
(37) $130,000,000 principal amount of First Mortgage Bonds, 5 7/8%
Series due October 1, 1997, which are described in the
Thirty-Third Supplemental Indenture dated October 1, 1992, all of
which remain outstanding at the date of execution hereof;
(38) $40,000,000 principal amount of First Mortgage Bonds, 6 1/2%
Series due October 1, 1999, which are described in the
Thirty-Third Supplemental Indenture dated October 1, 1992, all of
which remain outstanding at the date of execution hereof;
(39) $200,000,000 principal amount of First Mortgage Bonds, 7.70%
Series due December 15, 2027, which are described in the
Thirty-Fifth Supplemental Indenture dated December 15, 1992, all
of which remain outstanding at the date of execution hereof;
(40) $100,000,000 principal amount of First Mortgage Bonds, 7 3/4%
Series due January 15, 2023, which are described in the
Thirty-Sixth Supplemental Indenture dated January 15, 1993, all of
which remain outstanding at the date of execution hereof;
(41) $30,000,000 principal amount of First Mortgage Bonds, 4 1/2%
Series due March 15, 1996, which are described in the
Thirty-Seventh Supplemental Indenture dated March 15, 1993, all of
which remain outstanding at the date of execution hereof;
(42) $100,000,000 principal amount of First Mortgage Bonds, 7 1/8%
Series due March 15, 2016, which are described in the
Thirty-Seventh Supplemental Indenture dated March 15, 1993, all of
which remain outstanding at the date of execution hereof;
(43) $60,000,000 principal amount of First Mortgage Bonds, 7.05% Series
due August 1, 2024, which are described in the Thirty-Eighth
Supplemental Indenture dated August 1, 1993, all of which remain
outstanding at the date of execution hereof;
(44) $60,000,000 principal amount of First Mortgage Bonds, 5 1/8%
Series due September 15, 1998, which are described in the
Thirty-Ninth Supplemental Indenture dated September 15, 1993, all
of which remain outstanding at the date of execution hereof;
and
<PAGE> 9
6
WHEREAS, the Company is entitled at this time to have authenticated and
delivered additional Bonds on the basis of the net bondable value of property
additions not subject to an unfunded prior lien, upon compliance with the
provisions of Section 4 of Article III of the Original Indenture; and
WHEREAS, the Company desires by this Supplemental Indenture to provide
for the creation of a new series of bonds under the Original Indenture, to be
designated "First Mortgage Bonds, _____% Series due ______________"
(hereinafter called the "Series _____ Bonds"); and the Original Indenture
provides that certain terms and provisions, as determined by the Board of
Directors of the Company, of the Bonds of any particular series may be
expressed in and provided for by the execution of an appropriate supplemental
indenture; and
WHEREAS, the Original Indenture provides that the Company and the Trustee
may enter into indentures supplemental to the Original Indenture to convey,
transfer and assign to the Trustee and to subject to the lien of the Original
Indenture additional properties acquired by the Company; to add, to the
covenants and agreements of the Company contained in the Original Indenture,
other covenants and agreements thereafter to be observed; and, under certain
circumstances, to modify the provisions of the Original Indenture; and
WHEREAS, the Company, in the exercise of the powers and authority
conferred upon and reserved to it under the provisions of the Original
Indenture and pursuant to appropriate resolutions of its Board of Directors,
has duly resolved and determined to make, execute and deliver to the Trustee a
supplemental indenture in the form hereof for the purposes herein provided;
and
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding and legal instrument have been done,
performed and fulfilled and the execution and delivery hereof have been in all
respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual covenants herein
contained and of the acceptance of this trust by the Trustee and of the sum of
One Dollar duly paid by the Trustee to the Company at or before the time of
the execution of this Supplemental Indenture, and of other valuable
considerations, the receipt whereof is hereby acknowledged, and in order
further to secure the payment of the principal of and interest (and premium,
if any) on all Bonds at any time issued and outstanding under the Original
Indenture and all indentures supplemental thereto, according to their tenor,
purport and effect, the Company has executed and delivered this Supplemental
Indenture and has granted, bargained, sold, warranted, aliened, remised,
released, conveyed, assigned, transferred, mortgaged, pledged, set over,
ratified and confirmed and by these presents does grant, bargain, sell,
warrant, alien, remise, release, convey, assign, transfer, mortgage, pledge,
set over, ratify and confirm unto Firstar Trust Company, as Trustee, and to
its successors in trust under the Indenture forever, all and singular the
properties described in Schedule A to this Supplemental Indenture (in addition
to all other properties heretofore specifically subjected to the lien of the
Indenture and not heretofore released from the lien thereof);
<PAGE> 10
7
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged, pledged, and conveyed by the Company as aforesaid, or intended so
to be, unto the Trustee and its successors and assigns forever;
SUBJECT, HOWEVER, to the exceptions and reservations and matters herein
recited, to existing leases other than leases which by their terms are
subordinate to the lien of the Indenture, to existing liens upon rights-of-way
for transmission or distribution line purposes, as defined in Article I of the
Original Indenture, and any extensions thereof, and subject to existing
easements for streets, alleys, highways, rights-of-way and railroad purposes
over, upon and across certain of the property described in Schedule A to this
Supplemental Indenture, and subject also to all the terms, conditions,
agreements, covenants, exceptions and reservations expressed or provided in
the deeds or other instruments, respectively, under and by virtue of which the
Company acquired the properties described in Schedule A to this Supplemental
Indenture, and to undetermined liens and charges, if any, incidental to
construction or other existing permitted liens as defined in Article I of the
Original Indenture;
IN TRUST, NEVERTHELESS, upon the terms and trusts in the Original
Indenture and the indentures supplemental thereto, including this Supplemental
Indenture, set forth, for the equal and proportionate benefit and security of
all present and future holders of the Bonds issued and to be issued
thereunder, or any of them, without preference of any of said Bonds of any
particular series over the Bonds of any other series, by reason of priority in
the time of the issue, sale or negotiation thereof, or by reason of the
purpose of issue or otherwise howsoever, except as otherwise provided in
Section 2 of Article IV of the Original Indenture;
PROVIDED, HOWEVER, and these presents are upon the condition that, if the
Company, its successors or assigns, shall pay or cause to be paid unto the
holders of the Bonds the principal and interest (and premium, if any) to
become due in respect thereof at the times and in the manner stipulated
therein and in the Indenture, and shall keep, perform and observe all and
singular the covenants and promises in the Bonds and in the Indenture
expressed as to be kept, performed and observed by or on the part of the
Company, then this Supplemental Indenture and the estate and rights hereby
granted shall cease, determine and be void, otherwise to remain in full force
and effect;
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto, for the benefit of those who shall hold the Bonds, or any of
them, to be issued under the Indenture, as follows:
ARTICLE I.
DESCRIPTION OF SERIES _____ BONDS.
SECTION 1. The ___________ series of Bonds to be executed, authenticated
and delivered under and secured by the Indenture shall be the Series _____
Bonds. The Series _____ Bonds shall, subject to the provisions of Section 1
of Article II of the Original Indenture, be designated as "First Mortgage
Bonds, _____% Series due ______________" of the Company. The Series _____
Bonds shall be executed, authenticated and delivered in accordance with the
provisions of, and shall in all respects be subject to, all of the terms,
conditions and covenants of the Original Indenture and of this Supplemental
Indenture.
<PAGE> 11
8
The Series _____ Bonds shall mature on ______________ and shall bear
interest at the rate of ______________________ percent per annum, payable
semi-annually on the ______ days of ________ and ________ in each year (each
such ___________ and ___________ being hereinafter called an "interest payment
date"). The Series _____ Bonds shall be payable as to principal and interest
in any coin or currency of the United States of America which at the time of
payment is legal tender for public and private debts, and shall be payable (as
well the interest as the principal thereof) at the agency of the Company in
the City of Milwaukee, Wisconsin; provided, however, at the option of the
Company, payment of interest on any Series _____ Bond may be made by check,
mailed to the person entitled thereto at such address as shall appear on the
transfer register.
The interest so payable on any interest payment date shall be paid to the
persons in whose names the Series _____ Bonds are registered at the close of
business on the last business day (hereinafter called the "record date") which
is more than ten calendar days prior to such interest payment date, a
"business day" being any day which is not a day on which banks in the City of
Milwaukee, Wisconsin, are authorized by law to close; except that if the
Company shall default in the payment of any interest due on such interest
payment date, such defaulted interest shall be paid to the persons in whose
names the Series _____ Bonds are registered on the date of payment of such
defaulted interest, or at the election of the Company at the close of business
on a special record date for the payment of such defaulted interest
established by notice given by mail by or on behalf of the Company not less
than fifteen calendar days preceding such special record date.
Except as provided hereinafter, every Series _____ Bond shall be dated as
of the date of its authentication and delivery, or if that is an interest
payment date, the next day, and shall bear interest from the interest payment
date next preceding its date or from _____________, whichever is later.
Notwithstanding Section 6 of Article II of the Original Indenture, any Series
_____ Bond authenticated and delivered by the Trustee after the close of
business on the record date with respect to any interest payment date and
prior to such interest payment date shall be dated as of the date next
following such interest payment date and shall bear interest from such
interest payment date; except that if the Company shall default in the payment
of any interest due on such interest payment date, such Bond shall bear
interest from the interest payment date to which interest on such Bond has
been paid or _____________, whichever is later.
SECTION 2. The Series _____ Bonds shall be registered bonds without
coupons, of the denomination of $1,000 and any multiple of $1,000, numbered
consecutively from R1 upwards.
SECTION 3. The Series _____ Bonds and the Trustee's Certificate to be
endorsed on the Series _____ Bonds shall be substantially in the following
forms respectively:
[FORM OF BOND]
WISCONSIN ELECTRIC POWER COMPANY
(Incorporated under the laws of the State of Wisconsin)
FIRST MORTGAGE BOND, _____% SERIES DUE ______________
<PAGE> 12
9
No. R.......... $..........
WISCONSIN ELECTRIC POWER COMPANY, a corporation organized and existing
under the laws of the State of Wisconsin (hereinafter called the "Company",
which term shall include any successor corporation as defined in the Amended
Indenture mentioned on the following pages hereof), for value received, hereby
promises to pay to or registered assigns, on the ______
day of ________, _____ the sum of Dollars, in any coin
or currency of the United States of America which at the time of payment is
legal tender for public and private debts, and to pay interest thereon in like
coin or currency from the ___________ or ___________ next preceding the date
of this Bond or from _____________, whichever is later, at the rate of
______________________ percent per annum, payable semi-annually, on the ______
days of ________ and ________ in each year until maturity, or, [if this Bond
shall be duly called for redemption, until the redemption date, or,] if the
Company shall default in the payment of the principal hereof, until the
Company's obligation with respect to the payment of such principal shall be
discharged as provided in the Amended Indenture. The interest so payable on
any ___________ or ___________ will, subject to certain exceptions provided in
the Supplemental Indenture of _____________ referred to herein, be paid to the
person in whose name this Bond is registered at the close of business on the
last business day which is more than ten calendar days prior to such
___________ or ___________. Both principal of, and interest on, this Bond are
payable at the agency of the Company in the City of Milwaukee, Wisconsin;
provided, however, at the option of the Company, payment of interest on this
Bond may be made by check, mailed to the person entitled thereto at such
address as shall appear on the transfer register.
This Bond shall not be entitled to any benefit under the Amended
Indenture or any indenture supplemental thereto, or become valid or obligatory
for any purpose, until Firstar Trust Company (formerly First Wisconsin Trust
Company), the Trustee under the Amended Indenture, or a successor trustee
thereto under the Amended Indenture, shall have signed the form of certificate
endorsed hereon.
Additional provisions of this Bond are set forth on the [reverse]
[following pages] hereof and such provisions shall for all purposes have the
same effect as though fully set forth at this place.
IN WITNESS WHEREOF, Wisconsin Electric Power Company has caused this Bond
to be signed in its name by its President or a Vice President, manually or in
facsimile, and its corporate seal (or a facsimile thereof) to be hereto
affixed and attested by the manual or facsimile signature of its Secretary or
an Assistant Secretary.
Dated,
WISCONSIN ELECTRIC POWER COMPANY,
By.............................
Attest: President
...............................
Secretary
<PAGE> 13
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[FORM OF TRUSTEE'S CERTIFICATE]
This Bond is one of the Bonds, of the series designated therein,
described in the within-mentioned Amended Indenture and Supplemental Indenture
of _____________.
FIRSTAR TRUST COMPANY,
Trustee,
By.............................
Authorized Officer
[REMAINDER OF TEXT OF BOND]
This Bond is one of a duly authorized issue of Bonds of the Company
(herein called the "Bonds"), in unlimited aggregate principal amount, of the
series hereinafter specified, all issued and to be issued under and equally
secured by a mortgage and deed of trust, dated October 28, 1938, executed by
the Company to Firstar Trust Company (formerly First Wisconsin Trust Company)
(herein called the "Trustee"), as Trustee, as amended by the indentures
supplemental thereto dated June 1, 1946, May 1, 1952, April 1, 1958,
December 1, 1980, January 15, 1988, October 1, 1992 and November 1, 1992,
between the Company and the Trustee (said mortgage and deed of trust, as so
amended, being herein called the "Amended Indenture") and all indentures
supplemental thereto, to which Amended Indenture and all indentures
supplemental thereto reference is hereby made for a description of the
properties mortgaged and pledged, the nature and extent of the security, the
rights of the registered owners of the Bonds, of the Company and of the
Trustee in respect thereto, and the terms and conditions upon which the Bonds
are, and are to be, secured. To the extent permitted by, and as provided in,
the Amended Indenture, modifications or alterations of the Amended Indenture,
or of any indenture supplemental thereto, and of the rights and obligations of
the Company and of the holders of the Bonds may be made with the consent of
the Company by an affirmative vote of not less than 75% in amount of the Bonds
entitled to vote then outstanding, at a meeting of Bondholders called and held
as provided in the Amended Indenture or by written consent in lieu of a
meeting, and by an affirmative vote of not less than 75% in amount of the
Bonds of any series entitled to vote then outstanding and affected by such
modification or alteration, in case one or more but less than all of the
series of Bonds then outstanding under the Amended Indenture are so affected;
provided, however, that no such modification or alteration shall be made which
will affect the terms of payment of the principal of, or interest or premium
(if any) on, this Bond, which are unconditional. The Bonds may be issued in
series, for various principal sums, may mature at different times, may bear
interest at different rates and may otherwise vary as in the Amended Indenture
provided. This Bond is one of a series designated as the "First Mortgage
Bonds, _____% Series due ______________" (herein called "Series _____ Bonds")
of the Company, issued under and secured by the Amended Indenture and all
indentures supplemental thereto and described in the _____________
Supplemental Indenture dated _____________ (hereinafter called the
"Supplemental Indenture of _____________"), executed by the Company to the
Trustee.
<PAGE> 14
11
Under a provision of the Supplemental Indenture of December 1, 1980, to
become effective at such date as no Bonds remain outstanding of any series
created on a date prior to December 1, 1980, the percentage vote referred to
in the preceding paragraph will be changed from 75% to 66 2/3%. Certain
modifications contained in the Supplemental Indenture of October 1, 1992
become effective upon the earlier of the date when no Bonds of any series
created prior to October 1, 1992 remain outstanding or the date such
modifications shall have been consented to by Bondholders. Such modifications
will, in general, (i) allow for the issuance of Additional Bonds for an
aggregate principal amount of up to 70% of the amount of Net Bondable Value of
Property Additions Not Subject to an Unfunded Prior Lien, as compared with the
limitation of 60% now set forth in the Amended Indenture, (ii) permit the
issuance of Prior Lien Bonds for an aggregate principal amount of up to 70% of
the amount of Net Bondable Value of Property Additions Subject to an Unfunded
Prior Lien, as compared with the limitation of 60% now set forth in the
Amended Indenture, (iii) allow the Company to acquire property subject to any
Unfunded Prior Lien, if at the time of acquisition the principal amount of
outstanding indebtedness subject to such lien or liens does not exceed 70% (as
compared to 60% currently) of the lesser of the cost or fair value to the
Company of the property of the nature of Property Additions subject to such
lien or liens, (iv) amend the definitions of "Net Bondable Value of Property
Additions Not Subject to an Unfunded Prior Lien" and "Net Bondable Value of
Property Additions Subject to an Unfunded Prior Lien" by changing the ratio to
be applied to certain dollar amounts in each definition's calculation from
ten-sixths to ten-sevenths, (v) provide that, in the case of a proposed merger
in which the Company would not be the survivor, such a transaction may not
occur if the principal amount of indebtedness outstanding immediately after
the merger subject to a lien or liens prior to that of the Company's exceeds
70% (as compared to 60% currently) of the lesser of cost or fair value of the
property of the nature of Property Additions then owned by the survivor, and
(vi) make certain conforming and other changes. Each holder of this Bond, by
his acceptance hereof, shall have, INTER ALIA, thereby consented to such
provisions, as well as to the other amendments and additions to the Amended
Indenture contained in the Supplemental Indentures of December 1, 1980,
January 15, 1988 and October 1, 1992, and shall have irrevocably appointed the
Company, with full power of substitution, to attend any meeting of Bondholders
convened to consider any of the amendments or additions to the Amended
Indenture contained in such Supplemental Indentures of December 1, 1980,
January 15, 1988 and October 1, 1992 and to vote this Bond in favor of any
resolution or resolutions proposing any such amendment or addition.
The Series _____ Bonds are subject to redemption at any time or from time
to time on or after ______________ and prior to maturity, at the option of the
Company, either as a whole or in part, upon payment of the redemption prices
applicable to the respective periods set forth below, together, in each case,
with accrued interest to the redemption date; [provided, however, that prior
to ______________ no Bonds of Series _____ Bonds may be redeemed, directly or
indirectly, from proceeds of or in anticipation of any refunding operation
involving the incurring of debt which has an effective interest cost to the
Company, computed in accordance with generally accepted financial practice, of
less than ____% per annum;] all subject to the conditions and as more fully
set forth in the Amended Indenture and the Supplemental Indenture of
_____________.
<PAGE> 15
12
Redemption Prices Expressed as Percentages of the Principal
-----------------------------------------------------------
Amount of the Bonds
-------------------
If Redeemed During the If Redeemed During the
12-Month Period Ending Redemption 12-Month Period Ending Redemption
______________________ Price ______________________ Price
- ---------------------- ---------- ---------------------- ----------
% %
[The Series _____ Bonds are not subject to redemption at the option of
the Company prior to ______________.]
Notice of redemption shall be mailed, not less than thirty days nor more
than sixty days prior to the redemption date, to all registered owners of the
Bonds to be redeemed, at their addresses as the same shall appear on the
transfer register of the Company; such notice may be rescinded by the Company
up to ten days prior to the redemption date; all subject to the conditions and
as more fully set forth in the Amended Indenture and the Supplemental
Indenture of _____________. Any notice so mailed shall be conclusively
presumed to have been duly given, whether or not the owner receives it.
[Alternative language if Bonds are not subject to redemption: Prior to
their maturity, the Series _____ Bonds are not subject to redemption at the
option of the Company or through the operation of a sinking fund and are not
subject to repayment at the option of any holder.]
In case an event of default, as defined in the Amended Indenture, shall
occur, the principal of all the Bonds at any such time outstanding under the
Amended Indenture and all indentures supplemental thereto may be declared or
may become due and payable, upon the conditions and in the manner and with the
effect provided in the Amended Indenture. The Amended Indenture provides that
such declaration may in certain events be waived by the holders of a majority
in principal amount of the Bonds outstanding.
This Bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, on the books of the Company to be kept for that
purpose at the agency of the Company in the City of Milwaukee, Wisconsin, upon
surrender and cancellation of this Bond and on presentation of a duly executed
written instrument of transfer, and thereupon a new registered Bond or Bonds
of the same series, of the same aggregate principal amount and in authorized
denominations, will be issued to the transferee or transferees in exchange
herefor; and this Bond, with or without others of like form and series, may in
like manner be exchanged for one or more new registered Bonds of the same
series of other authorized denominations but of the same aggregate principal
amount; all subject to the terms and conditions set forth in the Amended
Indenture.
<PAGE> 16
13
No recourse shall be had for the payment of the principal of, or the
interest on, this Bond, or for any claim based hereon or on the Amended
Indenture or any indenture supplemental thereto, against any incorporator, or
against any stockholder, director or officer, as such, past, present or
future, of the Company, or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor corpora-
tion, whether for amounts unpaid on stock subscriptions or by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability, whether at common law, in equity,
by any constitution, statute or otherwise, of incorporators, stockholders,
directors or officers, as such, being released by every owner hereof by the
acceptance of this Bond and as part of the consideration for the issue hereof,
and being likewise released by the terms of the Amended Indenture.
[The Series _____ Bonds are to be issued initially under a book-entry
only system and, except as hereinafter provided, registered in the name of The
Depository Trust Company, New York, New York ("DTC") or its nominee, which
shall be considered to be the holder of all of the Series _____ Bonds for all
purposes of the Amended Indenture, including, without limitation, payment by
the Company of principal of and interest on such Series _____ Bonds and
receipt of notices and exercise of rights of holders of such Series _____
Bonds. There shall be one or more Series _____ Bonds which shall be
immobilized in the custody of DTC with the owners of book-entry interests in
Series _____ Bonds ("Book-Entry Interests") having no right to receive Series
_____ Bonds in the form of physical securities or certificates. Ownership of
Book-Entry Interests shall be shown by book entry on the system maintained and
operated by DTC, its participants (the "Participants") and certain persons
acting through the Participants. Transfers of ownership of Book-Entry
Interests are to be made only by DTC and the Participants by that book-entry
system, the Company and the Trustee having no responsibility therefor so long
as the Series _____ Bonds are registered in the name of DTC or its nominee.
DTC is to maintain records of the positions of Participants in the Series
_____ Bonds, and the Participants and persons acting through Participants are
to maintain records of the purchasers and owners of Book-Entry Interests. If
DTC or its nominee determines not to continue to act as a depository for the
Series _____ Bonds in connection with a book-entry only system, another
depository, if available, may act instead and such Bond(s) will be transferred
into the name of such other depository or its nominee, in which case the above
provisions will continue to apply but to the new depository. If the book-
entry only system for Series _____ Bonds is discontinued for any reason, upon
surrender and cancellation of the Bond(s) registered in the name of the then
depository or its nominee, new registered Series _____ Bonds will be issued in
authorized denominations to the holders of Book-Entry Interests in principal
amounts coinciding with the amounts of such Book-Entry Interests shown on the
book-entry system immediately prior to the discontinuance thereof. Neither
the Trustee nor the Company shall be responsible for the accuracy of the
interests shown on that system.]
SECTION 4. Until the Series _____ Bonds in definitive form are ready for
delivery, the Company may execute, and upon its request in writing the Trustee
shall authenticate and deliver, in lieu thereof, Series _____ Bonds in
temporary form, as provided in Section 9 of Article II of the Original
Indenture.
<PAGE> 17
14
[Such Series _____ Bonds in temporary form may, in lieu of the statement
of the specific redemption prices required to be set forth in such Bonds in
definitive form, include a reference to this Supplemental Indenture for a
statement of such redemption prices.]
ARTICLE II.
ISSUE OF SERIES _____ BONDS.
SECTION 1. The principal amount of the Series _____ Bonds which may be
authenticated and delivered hereunder is not limited except as the Original
Indenture limits the principal amount of Bonds which may be issued thereunder.
SECTION 2. Series _____ Bonds in the aggregate principal amount of
_____________ million dollars ($___________), being the initial issue of
Series _____ Bonds, may forthwith be executed by the Company and delivered to
the Trustee and shall be authenticated by the Trustee and delivered (either
before or after the filing or recording hereof) to or upon the order of the
Company, upon receipt by the Trustee of the resolutions, certificates,
instruments and opinions required by Sections 3 and 4 of Article III and by
Article XVIII of the Original Indenture.
ARTICLE III.
REDEMPTION.
[NO REDEMPTION PRIOR TO MATURITY; NO SINKING FUND.]
SECTION 1. The Series _____ Bonds shall, subject to the provisions of
Article V of the Original Indenture, be redeemable at any time or from time to
time on or after ______________ and prior to maturity, at the option of the
Board of Directors of the Company, either as a whole or in part, upon payment
of the redemption prices applicable to the respective periods set forth in the
form of Series _____ Bonds in Section 3 of Article I hereof, together, in each
case, with accrued interest to the redemption date. The Series _____ Bonds
shall not be subject to redemption at the option of the Company prior to
______________.
SECTION 2. Notice of redemption shall be sufficiently given if mailed,
postage prepaid, not less than thirty days and not more than sixty days prior
to the date fixed for redemption, to the registered owners of the Bonds to be
redeemed, at their addresses as the same shall appear on the transfer register
of the Company. Any notice so mailed shall be conclusively presumed to have
been duly given, whether or not the owner receives it. The Company reserves
the right to rescind any notice of its intention to redeem any of the Series
_____ Bonds at any time not less than ten days prior to the proposed
redemption date, provided moneys for the redemption of the Bonds called shall
not theretofore have been irrevocably deposited with the Trustee, by notifying
the Trustee in writing of such rescission and by mailing notice of such
rescission at least ten days prior to the redemption date to each of the
registered owners of Series _____ Bonds to whom notice of redemption was
given.
[Alternate language if Bonds are not subject to redemption: Prior to
their maturity, the Series _____ Bonds are not subject to redemption at the
option of the Company or through the operation of a sinking fund and are not
subject to repayment at the option of any holder.]
<PAGE> 18
15
ARTICLE IV.
ADDITIONAL PARTICULAR COVENANTS OF THE COMPANY.
The Company hereby covenants, warrants and agrees:
SECTION 1. That, so long as any Series _____ Bonds are outstanding, the
Company will not make any restricted payment on its Common Stock, as such term
is defined in Section 2 of this Article IV, if, after giving effect to such
restricted payment,
(a) the aggregate of all restricted payments made by the Company
during the period commencing ____________ and ending on the last day of
the third month preceding the month in which such restricted payment is
made,
shall exceed
(b) the sum of $___________ at _____________ plus the net income
of the Company during such period applicable to the Common Stock of the
Company.
SECTION 2. The terms "restricted payment" and "restricted payment on its
Common Stock", as such terms are used in this Article IV, shall mean and
include the declaration and payment of any dividend on the Common Stock of the
Company (other than dividends payable solely in shares of Common Stock), the
making of any other distribution on and the acquisition for value of any
shares of its Common Stock (except in exchange for shares of Common Stock).
SECTION 3. That the Company is lawfully seized and possessed of all of
the mortgaged property described in Schedule A to this Supplemental Indenture;
that it has good right and lawful authority to mortgage the same as provided
in this Supplemental Indenture; and that such mortgaged property is, at the
actual date of the initial issue of the Series _____ Bonds, free and clear of
any deed of trust, mortgage, lien, charge or encumbrance thereon or affecting
the title thereto prior to the Indenture, except as set forth in the granting
clauses of the Indenture or this Supplemental Indenture.
ARTICLE V.
SECTION 1 OF ARTICLE IV LIMITED.
The provisions of Section 1 of Article IV above shall be binding upon the
Company and effective so long, but only so long, as any Series _____ Bonds are
outstanding.
<PAGE> 19
16
ARTICLE VI.
EFFECT OF TRUST INDENTURE REFORM ACT OF 1990.
The Trust Indenture Reform Act of 1990 has, by operation of law,
effective November 15, 1990, amended the Original Indenture to conform to the
provisions of Sections 310 through 317 of the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, in accordance with Section
318(c) of the Trust Indenture Act of 1939 added by the Trust Indenture Reform
Act of 1990. The text of the Original Indenture has not been physically
changed to reflect such amendment.
ARTICLE VII.
THE TRUSTEE.
The Trustee hereby accepts the trusts hereby declared and provided, and
agrees to perform the same upon the terms and conditions in the Original
Indenture and in this Supplemental Indenture set forth, and upon the following
terms and conditions.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or the
due execution hereof by the Company or for or in respect of the recitals
contained herein, all of which recitals are made by the Company solely.
ARTICLE VIII.
MISCELLANEOUS PROVISIONS.
All terms contained in this Supplemental Indenture and not defined herein
shall, for all purposes hereof, have the meanings given to such terms in
Article I of the Original Indenture.
Although this Supplemental Indenture for convenience and for the purpose
of reference is dated _____________, the actual date of execution by the
Company and by the Trustee is as indicated by their respective acknowledgments
hereto annexed.
This Supplemental Indenture may be simultaneously executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
<PAGE> 20
17
IN WITNESS WHEREOF, said Wisconsin Electric Power Company has caused this
Supplemental Indenture to be executed on its behalf by its President or one of
its Vice Presidents, and its corporate seal to be hereto affixed and said seal
and this Supplemental Indenture to be attested by its Secretary or one of its
Assistant Secretaries; and said Firstar Trust Company, in evidence of its
acceptance of the trust hereby created, has caused this Supplemental Indenture
to be executed on its behalf by its President or one of its Vice Presidents,
and its corporate seal to be hereto affixed and said seal and this
Supplemental Indenture to be attested by its Secretary or one of its Assistant
Secretaries; all as of the _____ day of _________, One thousand nine hundred
and ninety-__________.
WISCONSIN ELECTRIC POWER COMPANY,
By
----------------------------
----------------
[Vice] President
[CORPORATE SEAL]
Attested:
- -----------------------------
---------------------
[Assistant] Secretary
Signed, sealed and delivered by
WISCONSIN ELECTRIC POWER COMPANY
in the presence of:
- -----------------------------
------------
- -----------------------------
------------
As Witnesses
<PAGE> 21
18
FIRSTAR TRUST COMPANY,
By
------------------------
--------------
Vice President
[CORPORATE SEAL]
Attested:
- -----------------------------
-------------------
Assistant Secretary
Signed, sealed and delivered by
FIRSTAR TRUST COMPANY
in the presence of:
- -----------------------------
------------
- -----------------------------
------------
As Witnesses
<PAGE> 22
19
STATE OF WISCONSIN, )
COUNTY OF MILWAUKEE.) SS.:
On this _____ day of _________, 19___, before me personally appeared
_______________ and ________________ to me personally known, who, being by me
severally duly sworn, did say: that _______________ is [a Vice] President and
________________ is [Assistant] Secretary of WISCONSIN ELECTRIC POWER COMPANY,
and that the seal affixed to the foregoing instrument is the corporate seal of
said corporation and that said instrument was signed and sealed on behalf of
said corporation by authority of its Board of Directors; and said
_______________ and ________________ severally acknowledged said instrument to
be the free act and deed of said corporation.
- -----------------------------------
------------------
Notary Public
State of Wisconsin
My Commission expires ______________
[Seal of Notary Public]
<PAGE> 23
20
STATE OF WISCONSIN, )
COUNTY OF MILWAUKEE.) SS.:
On this _____ day of _________, 19___, before me personally appeared
_________________ and ______________ to me personally known, who, being by me
severally duly sworn, did say: that _________________ is a Vice President and
______________ is an Assistant Secretary of FIRSTAR TRUST COMPANY, and that
the seal affixed to the foregoing instrument is the corporate seal of said
corporation and that said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors; and said _________________
and ______________ severally acknowledged said instrument to be the free act
and deed of said corporation.
- -----------------------------------
------------------
Notary Public
State of Wisconsin
My Commission expires ______________
[Seal of Notary Public]
<PAGE> 24
21
STATE OF WISCONSIN, )
COUNTY OF MILWAUKEE.) SS.:
_______________, being duly sworn, says: that he is [a Vice] President of
WISCONSIN ELECTRIC POWER COMPANY, the Mortgagor named in the foregoing
instrument; that he has knowledge of the facts with regard to the making of
said instrument and of the consideration therefor; that the consideration for
said instrument was and is actual and adequate; and that the same was given in
good faith for the purpose in such instrument set forth, namely, to define the
terms and conditions of the series of First Mortgage Bonds provided for
therein.
------------------------------
_________________
Sworn to before me this _____ day of
_________, 19___
- -----------------------------------
-------------------
Notary Public
State of Wisconsin
My Commission expires ______________
[Seal of Notary Public]
This instrument was drafted by Bruce C. Davidson and James D. Zakrajsheck on
behalf of Wisconsin Electric Power Company.
<PAGE> 25
22
SCHEDULE A
DESCRIPTION OF PROPERTIES
Parcels of Real Estate.
WISCONSIN
The following described parcels of real estate, all of which are located
in the State of Wisconsin in the respective counties hereinafter specified:
<PAGE> 26
23
MICHIGAN
The following described parcels of real estate, all of which are located
in the State of Michigan in the respective counties hereinafter specified:
<PAGE> 1
EXHIBIT (4)-(42)
Form of New Bonds
EXHIBIT (4)-(42)
SEE EXHIBIT (4)-(41)
<PAGE> 1
Exhibit (4)-(43)
Conformed Copy
- ----------------------------------------------------------------------------
WISCONSIN ELECTRIC POWER COMPANY
and
FIRSTAR TRUST COMPANY,
as Trustee
- -----------------------
INDENTURE
Dated as of December 1, 1995
- ----------------------
DEBT SECURITIES
- ------------------------------------------------------------------------------
<PAGE> 2
WISCONSIN ELECTRIC POWER COMPANY
PARTIAL CROSS-REFERENCE TABLE
Trust Indenture Act of 1939
and Indenture dated as of December 1, 1995
Indenture Section TIA Section
2.05............................................317(b)
2.06............................................312(a), 313(c)
2.11............................................316(a) (last sentence)
4.04............................................314(a)(4)
4.05............................................314(a)(1)
6.03............................................317(a)(1)
6.04............................................316(a)(1)(B)
6.05............................................316(a)(1)(A)
6.07............................................317(a)(1)
7.01............................................315(a), 315(d)
7.04............................................315(b)
7.05............................................313(a)
7.05............................................313(d)
7.07............................................310(a), 310(b)
7.09............................................310(a)(2)
8.02............................................310(a),310(b)
9.04............................................316(c)
10.01...........................................318(a)
10.02...........................................313(c)
10.03...........................................314(c)(1), 314(c)(2)
10.04...........................................314(e)
<PAGE> 3
WISCONSIN ELECTRIC POWER COMPANY
DEBT SECURITIES INDENTURE
Dated As Of December 1, 1995
TABLE OF CONTENTS
Article Section Heading Page
- ------- ------- ------- ----
1 DEFINITIONS
1.01 Definitions.................................... 1
1.02 Other Definitions.............................. 3
1.03 Rules of Construction.......................... 4
2 THE SECURITIES
2.01 Issuable in Series............................. 4
2.02 Execution and Authentication................... 6
2.03 Securities Agents.............................. 6
2.04 Bearer Securities.............................. 7
2.05 Paying Agent to Hold Money in
Trust........................................ 8
2.06 Securityholder Lists........................... 8
2.07 Transfer and Exchange.......................... 8
2.08 Replacement Securities......................... 9
2.09 Outstanding Securities......................... 10
2.10 Discounted Securities.......................... 10
2.11 Treasury Securities............................ 10
2.12 Global Securities.............................. 10
2.13 Temporary Securities........................... 11
2.14 Cancellation................................... 11
2.15 Defaulted Interest............................. 12
3 REDEMPTION
3.01 Notices to Trustee............................. 12
3.02 Selection of Securities to Be
Redeemed..................................... 12
3.03 Notice of Redemption........................... 13
3.04 Effect of Notice of
Redemption................................... 14
3.05 Payment of Redemption Price.................... 14
3.06 Securities Redeemed in Part.................... 14
-i-
<PAGE> 4
Article Section Heading Page
- ------- ------- ------- ----
4 COVENANTS
4.01 Payment of Securities.......................... 15
4.02 Overdue Interest............................... 15
4.03 No Lien Created, etc........................... 15
4.04 Compliance Certificate......................... 15
4.05 SEC Reports.................................... 16
4.06 Certain Definitions............................ 16
4.07 Limitations on Liens........................... 19
5 SUCCESSORS
5.01 When Company May Merge, etc.................... 20
6 DEFAULTS AND REMEDIES
6.01 Events of Default.............................. 21
6.02 Acceleration................................... 22
6.03 Other Remedies................................. 23
6.04 Waiver of Past Defaults........................ 23
6.05 Control by Majority............................ 23
6.06 Limitation on Suits............................ 23
6.07 Collection Suit by Trustee..................... 24
6.08 Priorities..................................... 24
7 TRUSTEE
7.01 Rights of Trustee.............................. 25
7.02 Individual Rights of Trustee................... 26
7.03 Trustee's Disclaimer........................... 26
7.04 Notice of Defaults............................. 26
7.05 Reports by Trustee to Holders.................. 26
7.06 Compensation and Indemnity..................... 27
7.07 Replacement of Trustee......................... 27
7.08 Successor Trustee by Merger, etc............... 28
7.09 Trustee's Capital and Surplus.................. 29
-ii-
<PAGE> 5
Article Section Heading Page
- ------- ------- ------- ----
8 DISCHARGE OF INDENTURE
8.01 Defeasance..................................... 29
8.02 Conditions to Defeasance....................... 29
8.03 Application of Trust Money..................... 30
8.04 Repayment to Company........................... 31
9 AMENDMENTS AND WAIVERS
9.01 Without Consent of Holders..................... 31
9.02 With Consent of Holders........................ 31
9.03 Compliance with Trust Indenture Act............ 32
9.04 Effect of Consents............................. 32
9.05 Notation on or Exchange of Securities.......... 33
9.06 Trustee Protected.............................. 33
10 MISCELLANEOUS
10.01 Trust Indenture Act............................ 33
10.02 Notices........................................ 33
10.03 Certificate and Opinion as to
Conditions Precedent......................... 34
10.04 Statements Required in Certificate or Opinion.. 35
10.05 Rules by Company and Agents.................... 35
10.06 Legal Holidays................................. 35
10.07 No Recourse Against Others..................... 36
10.08 Duplicate Originals............................ 36
10.09 Governing Law.................................. 36
SIGNATURES..................................... 37
Exhibit A: A Form of Registered
Security..................................... 41
Exhibit B: A Form of Bearer Security.................... 47
Notes to Exhibits A and B................................ 55
Exhibit C: Assignment Form.............................. 57
-iii-
<PAGE> 6
INDENTURE dated as of December 1, 1995 between WISCONSIN ELECTRIC
POWER COMPANY, a Wisconsin corporation (the "Company"), and FIRSTAR TRUST
COMPANY, a Wisconsin state banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the Holders of the
Company's debt securities issued under this Indenture:
ARTICLE 1--DEFINITIONS
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
"Agent" means any Registrar, Transfer Agent or Paying Agent.
"Authorized Newspaper" means a newspaper that is:
(1) printed in the English language or in an official language of
the country of publication;
(2) customarily published on each business day in the place of
publication; and
(3) of general circulation in the relevant place or in the
financial community of such place.
Whenever successive publications in an Authorized Newspaper are required, they
may be made on the same or different business days and in the same or
different Authorized Newspapers.
"Bearer Security" means a Security payable to bearer.
"Board" means the Board of Directors of the Company or any authorized
committee of the Board.
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"coupon" means an interest coupon for a Bearer Security.
"Default" means any event which is, or after notice or passage of
time would be, an Event of Default.
"Discounted Security" means a Security where the amount of principal
due upon acceleration is less than the stated principal amount.
-1-
<PAGE> 7
"Holder" or "Securityholder" means the person in whose name a
Registered Security is registered and the bearer of a Bearer Security or
coupon.
"Indenture" means this Indenture and any Securities Resolution as
amended from time to time.
"Lien" means any mortgage, pledge, security interest or other lien.
"Officer" means the Chairman of the Board, any Vice Chairman, the
President, any Executive Vice President, any Senior Vice President, any Vice
President, the Treasurer, the Secretary, the Controller, any Assistant
Treasurer, any Assistant Secretary or any Assistant Controller of the Company.
"Officers' Certificate" means a certificate signed by any one or more
Officers.
"Opinion of Counsel" means a written opinion, complying with Sections
10.03 and 10.04 hereof, from legal counsel who is acceptable to the Trustee.
The counsel may be an employee of or counsel to the Company or the Trustee.
"principal" of a debt security means the principal of the security
plus the premium, if and when applicable, on the security.
"Registered Security" means a Security registered as to principal and
interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities issued under this Indenture.
"Securities Resolution" means a resolution establishing a series of
Securities adopted by the Board or by an Officer or committee of Officers
pursuant to Board delegation or a supplemental indenture establishing such
series of Securities executed by an authorized Officer.
"series" means a series of Securities or the Securities of the
series.
"Subsidiary" means a corporation a majority of whose Voting Stock is
owned by the Company or a Subsidiary.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb), as amended by the Trust Indenture Reform Act of 1990,
as in effect on the date shown above.
-2-
<PAGE> 8
"Trustee" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"United States" means the United States of America, its territories
and possessions and other areas subject to its jurisdiction.
"Voting Stock" means capital stock having voting power under ordinary
circumstances to elect directors.
"Yield to Maturity" means the yield to maturity on a Security at the
time of its issuance or at the most recent determination of interest on the
Security.
SECTION 1.02. Other Definitions.
Term Defined in Section
"Bankruptcy Law"............................. 6.01
"Conditional Redemption"..................... 3.04
"Custodian".................................. 6.01
"Event of Default"........................... 6.01
"Funded Debt"................................ 4.06
"Legal Holiday".............................. 10.06
"Mortgage"................................... 4.06
"Paying Agent"............................... 2.03
"Permitted Encumbrances"..................... 4.06
"Person"..................................... 4.06
"Principal Property"......................... 4.06
"Registrar".................................. 2.03
"Tangible Net Worth"......................... 4.06
"Transfer Agent"............................. 2.03
"Treasury Regulations"....................... 2.04
"U.S. Government Obligations"................ 8.02
-3-
<PAGE> 9
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in the United States;
(3) generally accepted accounting principles are those applicable
from time to time;
(4) all terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC
rule under the TIA have the meanings assigned to them by such
definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the plural
include the singular.
ARTICLE 2--THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may be issued under
this Indenture is unlimited. The Securities may be issued from time to time
in one or more series. Each series shall be created by a Securities
Resolution that establishes the terms of the series, which may include the
following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate, if any, or method of calculating the
interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Registered Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
-4-
<PAGE> 10
(9) the Registrar, Transfer Agent and Paying Agent;
(10) the terms of any mandatory or optional redemption by the
Company;
(11) the terms of any redemption at the option of Holders;
(12) the denominations in which Securities are issuable;
(13) whether Securities will be issuable as Registered Securities or
Bearer Securities;
(14) whether and upon what terms Registered Securities and Bearer
Securities may be exchanged;
(15) whether any Securities will be represented by a Security in
global form and the terms of any global Security;
(16) the terms of any tax indemnity;
(17) the currencies (including any composite currency) in which
principal or interest may be paid and if payments of principal
or interest may be made in a currency other than that in which
Securities are denominated, the manner for determining such
payments;
(18) if amounts of principal or interest may be determined by
reference to an index, formula or other method, the manner for
determining such amounts;
(19) provisions for electronic issuance of Securities or for
Securities in uncertificated form;
(20) the portion of principal payable upon acceleration of a
Discounted Security;
(21) whether Section 4.07 applies, and any Events of Default or
covenants in addition to or in lieu of those set forth in this
Indenture;
(22) whether and upon what terms Securities may be defeased;
(23) the forms of the Securities or any coupon, which may be in the
form of Exhibit A or B;
(24) any terms that may be required by or advisable under U.S. or
other applicable laws; and
(25) any other terms not inconsistent with this Indenture.
-5-
<PAGE> 11
All Securities of one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
The creation and issuance of a series and the authentication and
delivery thereof are not subject to any conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile
signature. The Company's seal shall be reproduced on the Securities, which
seal may be affixed or in facsimile form. An Officer shall sign any coupons
by facsimile signature.
If an Officer whose signature is on a Security or its coupons no
longer holds that office at the time the Security is authenticated or
delivered, the Security and coupons shall nevertheless be valid.
A Security and its coupons shall not be valid until the Security is
authenticated by the manual signature of the Registrar. The signature shall
be conclusive evidence that the Security has been authenticated under this
Indenture.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated the date of its
authentication or as provided in the Securities Resolution.
Securities may have notations, legends or endorsements required by
law, stock exchange rule, agreement or usage, which shall be provided to the
Trustee in writing by the Company.
In the event Securities are issued in electronic or other
uncertificated form, such Securities may be validly issued without the
signatures or seal contemplated by this Section 2.02.
SECTION 2.03. Securities Agents.
The Company shall maintain an office or agency where Securities may
be authenticated ("Registrar"), where Securities may be presented for
registration of transfer or for exchange ("Transfer Agent") and where
Securities may be presented for payment ("Paying Agent"). Whenever the
Company must issue or deliver Securities pursuant to this Indenture, the
Registrar shall authenticate the Securities at the Company's request. The
Transfer Agent shall keep a register of the Securities and of their transfer
and exchange.
The Trustee shall be, and is hereby appointed as, the Registrar. The
Company may appoint more than one Transfer Agent or Paying Agent for a series.
The Company shall notify the Trustee of the name and address of any Agent not
a party to this Indenture. If the Company fails to maintain a Transfer Agent
or Paying Agent for a series, the Trustee shall act as such.
-6-
<PAGE> 12
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or exchanges of and
payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold and delivered only
outside the United States and will be delivered only upon
presentation of a certificate in a form prescribed by the
Company to comply with U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange for Registered
Securities.
(3) All payments of principal and interest (including original
issue discount) on Bearer Securities will be made outside the
United States by a Paying Agent located outside the United
States unless the Company determines that:
(A) such payments may not be made by such Paying Agent
because the payments are illegal or prevented by exchange
controls as described in Treasury Regulation section
1.163-5(c)(2)(v); and
(B) making the payments in the United States would not have
an adverse tax effect on the Company.
If there is a change in the relevant provisions of U.S. laws or
Treasury Regulations or the judicial or administrative interpretation thereof,
a restriction set forth in paragraph (1), (2) or (3) above will not apply to a
series if the Company determines that the relevant provisions no longer apply
to the series or that failure to comply with the relevant provisions would not
have an adverse tax effect on the Company or on Securityholders or cause the
series to be treated as "registration-required" obligations under U.S. law.
The Company shall notify the Trustee in writing of any determinations
by the Company under this Section.
"Treasury Regulations" means regulations of the U.S. Treasury
Department under the Internal Revenue Code of 1986, as amended.
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<PAGE> 13
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series other than
the Trustee to agree in writing that the Paying Agent will hold in trust for
the benefit of the persons entitled thereto all money held by the Paying Agent
for the payment of principal of or interest on the series, and will notify the
Trustee in writing of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying
Agent to pay all money so held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent shall have no further liability
for the money.
If the Company or an Affiliate acts as Paying Agent for a series, it
shall segregate and hold as a separate trust fund all money held by it as
Paying Agent for the series.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Transfer Agent, the Company shall
furnish to the Trustee semiannually and at such other times as the Trustee may
request a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Registered Securities and
Holders of Bearer Securities whose names are on the list referred to below.
The Transfer Agent shall keep a list of the names and addresses of
Holders of Bearer Securities who file a request to be included on such list.
A request will remain in effect for two years but successive requests may be
made.
Whenever the Company or the Trustee is required to mail a notice to
all Holders of Registered Securities of a series, it also shall mail the
notice to Holders of Bearer Securities of the series whose names are on the
list, if any.
Whenever the Company is required to publish a notice to all Holders
of Bearer Securities of a series, it also shall mail the notice to such of
them whose names are on the list, if any.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented to the Transfer
Agent with a request to register a transfer or to exchange them for an equal
principal amount of Registered Securities of other denominations of the
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series, the Transfer Agent shall register the transfer or make the exchange if
its requirements for such transactions are met. Where Bearer Securities of a
series are presented to the Transfer Agent with a request to exchange them for
an equal principal amount of Bearer Securities of other denominations of the
series, the Transfer Agent shall make the exchange if its requirements for
such transactions are met.
The Transfer Agent may require a Holder to pay a sum sufficient to
cover any taxes imposed on a transfer or exchange.
If a series provides for Registered and Bearer Securities and for
their exchange, Bearer Securities may be exchanged for Registered Securities
and Registered Securities may be exchanged for Bearer Securities as provided
in the Securities or the Securities Resolution establishing the series if the
requirements of the Transfer Agent for such transactions are met and if
Section 2.04 permits the exchange.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company
or the Trustee that the Security or coupon has been acquired by a bona fide
purchaser, the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or
taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and any
taxes for replacing the Security or coupon.
A replacement Security shall have coupons attached corresponding to those, if
any, on the replaced Security.
Every replacement Security or coupon is an additional obligation of
the Company.
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SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Registrar except for those canceled by it, those
delivered to it for cancellation, and those described in this Section as not
outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to
be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
SECTION 2.10. Discounted Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, the
principal amount of a Discounted Security shall be the amount of principal
that would be due as of the date of such determination if payment of the
Security were accelerated on that date.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities for which the Trustee
has received an Officers' Certificate stating that such Securities are so
owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Securities Resolution establishing a series so provides, the
Company may issue some or all of the Securities of the series in temporary or
permanent global form. A global Security may be in registered form, in bearer
form with or without coupons or in uncertificated form. A global Security
shall represent that amount of Securities of a series as specified in the
global Security or as endorsed thereon from time to time. At the Company's
request, the Registrar shall endorse a global Security to reflect the amount
of any increase or decrease in the Securities represented thereby.
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The Company may issue a global Security only to a depositary
designated by the Company. A depositary may transfer a global Security only
as a whole to its nominee or to a successor depositary.
The Securities Resolution may establish, among other things, the
manner of paying principal and interest on a global Security and whether and
upon what terms a beneficial owner of an interest in a global Security may
exchange such interest for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not be
responsible for any acts or omissions of a depositary, for any depositary
records of beneficial ownership interests or for any transactions between the
depositary and beneficial owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for delivery, the
Company may use temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Temporary
Securities may be in global form. Temporary Bearer Securities may have one or
more coupons or no coupons. Without unreasonable delay, the Company shall
deliver definitive Securities in exchange for temporary Securities.
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Transfer Agent and the Paying Agent shall forward to the
Registrar any Securities and coupons surrendered to them for payment, exchange
or registration of transfer. The Registrar shall cancel all Securities or
coupons surrendered for payment, registration of transfer, exchange or
cancellation as follows: the Registrar will cancel all Registered Securities
and matured coupons. The Registrar also will cancel all Bearer Securities and
unmatured coupons unless the Company requests the Registrar to hold the same
for redelivery. Any Bearer Securities so held shall be considered delivered
for cancellation under Section 2.09. The Registrar shall destroy canceled
Securities and coupons and deliver a certificate of cancellation thereof to
the Company unless the Company otherwise directs.
Unless the Securities Resolution establishing a series otherwise
provides, the Company may not issue new Securities to replace Securities that
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the Company has paid or that the Company has delivered to the Registrar for
cancellation.
SECTION 2.15. Defaulted Interest.
If the Company defaults in a payment of interest on Registered
Securities, it need not pay the defaulted interest to Holders on the regular
record date. The Company may fix a special record date for determining
Holders entitled to receive defaulted interest or the Company may pay
defaulted interest in any other lawful manner.
ARTICLE 3--REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before maturity shall be
redeemable in accordance with their terms and, unless the Securities
Resolution establishing the series otherwise provides, in accordance with this
Article.
In the case of a redemption by the Company, the Company shall notify
the Trustee of the redemption date and the principal amount of Securities to
be redeemed. The Company shall notify the Trustee at least 35 days before the
redemption date unless a shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it may reduce the
principal amount of Securities required to be redeemed to the extent it is
permitted a credit by the terms of the Securities and it notifies the Trustee
of the amount of the credit and the basis for it. If the reduction is based
on a credit for acquired or redeemed Securities that the Company has
not previously delivered to the Registrar for cancellation, the Company shall
deliver the Securities at the same time as the notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed pro rata or by any other
method the Trustee considers fair and appropriate, unless the Company
otherwise directs in writing. The Trustee shall make the selection from
Securities of the series outstanding not previously called for redemption.
The Trustee may select for redemption portions of the principal of Securities
having denominations larger than the minimum denomination for the series.
Securities and portions thereof selected for redemption shall be in amounts
equal to the minimum denomination for the series or an integral multiple
thereof. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
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SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first-class mail to each
Holder of Registered Securities whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall publish a
notice of redemption in an Authorized Newspaper as provided in the Securities.
A notice shall identify the Securities of the series to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all
coupons, if any, maturing after the redemption date, must be
surrendered to the Paying Agent to collect the redemption
price;
(5) that interest on Securities called for redemption ceases to
accrue on and after the redemption date;
(6) whether the redemption by the Company is mandatory or optional;
and
(7) whether the redemption is conditional as provided in Section
3.04, the terms of the condition, and that, if the condition is
not satisfied or is not waived by the Company, the Securities
will not be redeemed and such a failure to redeem will not
constitute an Event of Default.
A redemption notice given by publication need not identify Registered
Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
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SECTION 3.04. Effect of Notice of Redemption.
Except as provided below, once notice of redemption is given,
Securities called for redemption become due and payable on the redemption date
at the redemption price stated in the notice.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as described
in such notice ("Conditional Redemption") and such notice of Conditional
Redemption shall be of no effect unless all such conditions to the redemption
have occurred before such date or have been waived by the Company.
SECTION 3.05. Payment of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date.
When the Holder of a Security surrenders it for redemption in
accordance with the redemption notice, the Company shall pay to the Holder on
the redemption date the redemption price and accrued interest to such date,
except that:
(1) the Company will pay any such interest (except defaulted
interest) to Holders on the record date of Registered
Securities if the redemption date occurs on an interest payment
date; and
(2) the Company will pay any such interest to Holders of coupons
that mature on or before the redemption date upon surrender of
such coupons to the Paying Agent.
Coupons maturing after the redemption date on a called Security are
void absent a payment default on that date. Nevertheless, if a Holder
surrenders for redemption a Bearer Security missing any such coupons, the
Company may deduct the face amount of such coupons from the redemption price.
If thereafter the Holder surrenders to the Paying Agent the missing coupons,
the Company will return the amount so deducted. The Company also may waive
surrender of the missing coupons if it receives an indemnity bond satisfactory
to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall deliver to the Holder a new Security of the same series equal in
principal amount to the unredeemed portion of the Security surrendered.
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ARTICLE 4--COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a series in
accordance with the terms of the Securities for the series, any related
coupons, and this Indenture. On each payment date, the Company shall have
deposited with the Paying Agent in funds which are then immediately available
money sufficient to pay all principal and interest then due on the series.
Principal and interest on a series shall be considered paid on the date due if
the Paying Agent for the series holds on that date money sufficient to pay all
principal and interest then due on the series.
SECTION 4.02. Overdue Interest.
Unless the Securities Resolution establishing a series otherwise
provides, the Company shall pay interest on overdue principal of a Security of
a series at the rate (or Yield to Maturity in the case of a Discounted
Security) borne by the series; it shall pay interest on overdue installments
of interest at the same rate or Yield to Maturity to the extent lawful.
SECTION 4.03. No Lien Created, etc.
This Indenture and the Securities do not create a Lien, charge or
encumbrance on any property of the Company or any Subsidiary.
SECTION 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, a brief certificate signed by the
principal executive officer, principal financial officer or principal
accounting officer of the Company, as to the signer's knowledge of the
Company's compliance with all conditions and covenants under this Indenture
(determined without regard to any period of grace or requirement of notice
provided herein).
Any other obligor on the Securities also shall deliver to the Trustee
such a certificate similarly signed as to its compliance with this Indenture
within 120 days after the end of each of its fiscal years.
The certificates need not comply with Section 10.04.
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SECTION 4.05. SEC Reports.
The Company shall provide to the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of the annual
reports and of the information, documents, and other reports (or such portions
of the foregoing as the SEC may prescribe) which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934.
Any other obligor on the Securities shall do likewise as to the above
items which it is required to file with the SEC pursuant to those Sections.
SECTION 4.06. Certain Definitions.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than twelve months from the date of the most recent balance
sheet of the Company (or consolidated balance sheet of the Company and its
Subsidiaries if the Company then has one or more Subsidiaries the accounts of
which are consolidated with the accounts of the Company) or renewable and
extendible beyond twelve months at the option of the borrower and all
obligations in respect of lease rentals which under generally accepted
accounting principles would be shown on such balance sheet (or consolidated
balance sheet) of the Company as a liability item other than a current
liability; provided, however, that Funded Debt shall not include any of the
foregoing to the extent that such indebtedness or obligations are not required
by generally accepted accounting principles to be shown on such balance sheet.
"Mortgage" means the Company's Mortgage and Deed of Trust dated
October 28, 1938, as heretofore or hereafter amended, modified and
supplemented, to Firstar Trust Company, as trustee, providing for the
Company's First Mortgage Bonds.
"Permitted Encumbrances" means any of the following:
(1) Liens of taxes, assessments or governmental charges for the
then current year and taxes, assessments or governmental
charges not then delinquent; Liens for workers' compensation
awards and similar obligations not then delinquent; mechanics',
laborers', materialmen's and similar Liens not then delinquent;
and any of such Liens, whether or not delinquent, whose
validity is at the time being contested in good faith by the
Company or any Subsidiary;
(2) Liens and charges incidental to construction or current
operations which have not at the time been filed or asserted or
the payment of which has been adequately secured or which, in
the opinion of counsel, are not material in amount;
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(3) Liens, securing obligations neither assumed by the Company or
any Subsidiary nor on account of which any of them customarily
pays interest directly or indirectly, existing, either at the
date hereof, or, as to property hereafter acquired, at the time
of acquisition by the Company or a Subsidiary;
(4) Any right which any municipal or governmental body or agency
may have by virtue of any franchise, license, contract or
statute to purchase, or designate a purchaser of or order the
sale of, any property of the Company or any Subsidiary upon
payment of reasonable compensation therefor, or to terminate
any franchise, license or other rights or to regulate the
property and business of the Company or any Subsidiary;
(5) The Lien of judgments covered by insurance, or upon appeal and
covered, if necessary, by the filing of an appeal bond, or if
not so covered not exceeding at any one time $1,000,000 in
aggregate amount;
(6) Easements or reservations in respect of any property of the
Company or any Subsidiary for the purpose of roads, pipelines,
utility transmission and distribution lines or other rights-of-
way and similar purposes, zoning ordinances, regulations,
reservations, restrictions, covenants, party wall agreements,
conditions of record and other encumbrances (other than to
secure the payment of money), none of which in the opinion of
counsel are such as to interfere with the proper operation and
development of the property affected thereby in the business of
the Company and its Subsidiaries for the use intended;
(7) Any Lien or encumbrance, moneys sufficient for the discharge of
which have been deposited in trust with the Trustee hereunder
or with the trustee or mortgagee under the instrument
evidencing such Lien or encumbrance, with irrevocable authority
to the Trustee hereunder or to such other trustee or mortgagee
to apply such moneys to the discharge of such Lien or
encumbrance to the extent required for such purpose;
(8) Any defects of title and any terms, conditions, agreements,
covenants, exceptions and reservations expressed or provided in
deeds or other instruments, respectively, under and by virtue
of which the Company or any Subsidiary has acquired any
property or shall hereafter acquire any property, none of
which, in the opinion of counsel, materially adversely affects
the operation of the properties of the Company and its
Subsidiaries, taken as a whole;
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(9) The pledge of cash or marketable securities for the purpose of
obtaining any indemnity, performance or other similar bonds in
the ordinary course of business, or as security for the payment
of taxes or other assessments being contested in good faith, or
for the purpose of obtaining a stay or discharge in the course
of any legal proceedings;
(10) The pledge or assignment in the ordinary course of business of
electricity, gas (either natural or artificial) or steam,
accounts receivable or customers' installment paper;
(11) Rights reserved to or vested in others to take or receive any
part of the electricity, gas (either natural or artificial),
steam or any by-products thereof generated or produced by or
from any properties of the Company or with respect to any other
rights concerning electricity, gas (either natural or
artificial) or steam supply, transportation, or storage which
are in use in the ordinary course of the electricity, gas
(either natural or artificial) or steam business;
(12) Any landlord's Lien;
(13) Liens created or assumed by the Company or a Subsidiary in
connection with the issuance of debt securities, the interest
on which is excludable from the gross income of the holders of
such securities pursuant to Section 103 of the Internal Revenue
Code of 1986, or any successor section, for purposes of
financing, in whole or in part, the acquisition or construction
of property to be used by the Company or a Subsidiary, but such
Liens shall be limited to the property so financed (and the
real estate on which such property is to be located);
(14) Liens incurred pursuant to Section 7.06;
(15) Liens affixing to property of the Company or a Subsidiary at
the time a Person consolidates with or merges into, or
transfers all or substantially all of its assets to, the
Company or a Subsidiary, provided that in the opinion of the
Board or Company management (evidenced by a certified Board
resolution or an Officers' Certificate delivered to the
Trustee) the property acquired pursuant to the consolidation,
merger or asset transfer is adequate security for the Lien; and
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(16) Liens or encumbrances not otherwise permitted if, at the time
of incurrence and after giving effect thereto, the aggregate of
all obligations of the Company and its Subsidiaries secured
thereby does not exceed 10% of Tangible Net Worth.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Principal Property" means any tangible real or personal property or
portion thereof unless, in the opinion of the Board or Company management
(evidenced by a certified Board resolution or an Officers' Certificate
delivered to the Trustee) such property is not of material importance to the
total business conducted by the Company and its Subsidiaries taken as a whole.
"Tangible Net Worth" means (i) common stockholders' equity appearing
on the most recent balance sheet of the Company (or consolidated balance sheet
of the Company and its Subsidiaries if the Company then has one or more
Subsidiaries the accounts of which are consolidated with the accounts of the
Company) prepared in accordance with generally accepted accounting principles
less (ii) intangible assets (excluding intangible assets recoverable through
rates as prescribed by applicable regulatory authorities).
SECTION 4.07. Limitations on Liens.
So long as there remain outstanding any Securities of any series to
which this Section 4.07 applies under the terms of the series, the Company
will not, and will not permit any Subsidiary to, create or suffer to be
created or to exist any Lien on any of its properties or assets now owned or
hereafter acquired to secure any indebtedness, without making effective
provision whereby the Securities of such series shall be equally and ratably
secured with any and all such indebtedness and with any other indebtedness
similarly entitled to be equally and ratably secured. However, this
restriction shall not apply to or prevent the creation or existence of:
(1) the Mortgage securing the Company's First Mortgage Bonds or any
indenture supplemental thereto subjecting any property to the
Lien thereof or confirming the Lien thereof upon any property,
whether now owned or hereafter acquired;
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(2) Liens on property existing at the time of acquisition or
construction of such property (or created within one year after
completion of such acquisition or construction), whether by
purchase, merger, construction or otherwise (or on the property
of a Subsidiary at the date it became a Subsidiary), or to
secure the payment of all or any part of the purchase price or
construction cost thereof, including the extension of any such
Liens to repairs, renewals, replacements, substitutions,
betterments, additions, extensions and improvements then or
thereafter made on the property subject thereto;
(3) any extensions, renewals or replacements (or successive
extensions, renewals or replacements), in whole or in part of
Liens permitted by the foregoing clauses (1) and (2);
(4) the pledge of any bonds or other securities at any time issued
under any of the Liens permitted by clauses (1), (2) or (3); or
(5) Permitted Encumbrances.
Further, this restriction shall not apply to or prevent the creation
or existence of leases made, or existing on property acquired, in the ordinary
course of business.
ARTICLE 5--SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
Unless the Securities Resolution establishing a series otherwise
provides, the Company shall not consolidate with or merge into, or transfer
all or substantially all of its assets to, any Person unless:
(1) the Person is organized under the laws of the United States or
a State thereof;
(2) the Person assumes by supplemental indenture all the
obligations of the Company under this Indenture, the Securities
and any coupons; and
(3) immediately after the transaction no Default exists.
The successor shall be substituted for the Company, and thereafter
all obligations of the Company under this Indenture, the Securities and any
coupons shall terminate.
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ARTICLE 6--DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Unless the Securities Resolution establishing a series otherwise
provides, an "Event of Default" on the series so established occurs if:
(1) the Company defaults in any payment of interest on any
Securities of the series when the same becomes due and payable
and the Default continues for a period of 60 days;
(2) the Company defaults in the payment of the principal of any
Securities of the series when the same becomes due and payable
at maturity or upon redemption, acceleration or otherwise;
(3) the Company defaults in the payment or satisfaction of any
sinking fund obligation with respect to any Securities of a
series as required by the Securities Resolution establishing
such series and the Default continues for a period of 60 days;
(4) the Company defaults in the performance of any of its other
agreements applicable to the series and the Default continues
for 90 days after the notice specified below;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian for it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
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(B) appoints a Custodian for the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60
days; or
(7) there occurs any other Event of Default provided for in the
series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator or a similar official under any
Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the series
notify the Company of the Default and the Company does not cure the Default
within the time specified after receipt of the notice. The notice must
specify the Default, demand that it be remedied and state that the notice is a
"Notice of Default." If Holders notify the Company of a Default, they shall
notify the Trustee at the same time.
The failure to redeem any Security subject to a Conditional
Redemption is not an Event of Default if any event on which such redemption is
so conditioned does not occur before the redemption date.
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing on a series, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the series by notice to the Company and the Trustee, may declare the
principal of and accrued interest on all the Securities of the series to be
due and payable immediately. Discounted Securities may provide that the
amount of principal due upon acceleration is less than the stated principal
amount.
The Holders of a majority in principal amount of the series by notice
to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default on the series have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration.
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SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing on a series, the
Trustee may pursue any available remedy to collect principal or interest then
due on the series, to enforce the performance of any provision applicable to
the series, or otherwise to protect the rights of the Trustee and Holders of
the series.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or coupons or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
The Holders of a majority in principal amount of a series by notice
to the Trustee may waive an existing Default on the series and its
consequences except:
(1) a Default in the payment of the principal of or interest on the
series, or
(2) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Securityholder
affected.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of a series may direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or of exercising any trust or power conferred on the
Trustee, with respect to the series. However, the Trustee may refuse to fol-
low any direction that conflicts with law or this Indenture.
SECTION 6.06. Limitation on Suits.
A Securityholder of a series may pursue a remedy with respect to the
series only if:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default on the series;
(2) the Holders of at least 25% in principal amount of the series
make a request to the Trustee to pursue the remedy;
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(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the series do not give the Trustee a
direction inconsistent with such request.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Collection Suit by Trustee.
If an Event of Default in payment of interest, principal or sinking
fund payment specified in Section 6.01(1), (2) or (3) occurs and is continuing
on a series, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount of principal and
interest remaining unpaid on the series.
SECTION 6.08. Priorities.
If the Trustee collects any money for a series pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.06;
Second: to Securityholders of the series for amounts due and
unpaid for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable for
principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a payment date for any payment to
Securityholders.
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ARTICLE 7--TRUSTEE
SECTION 7.01. Rights of Trustee.
(1) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter
stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in
good faith in reliance on the Certificate or Opinion.
(3) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with
due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(5) The Trustee may refuse to perform any duty or exercise any
right or power which it reasonably believes may expose it to
any loss, liability or expense unless it receives indemnity
satisfactory to it against such loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
(7) The Trustee shall have no duty with respect to a Default unless
a Trust Officer has received written notice of such Default.
(8) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized
and within its powers.
(9) Any Agent shall have the same rights and be protected to the
same extent as if it were Trustee.
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SECTION 7.02. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or coupons and may otherwise deal with the
Company or an Affiliate with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
SECTION 7.03. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities or any coupons; it shall not be accountable
for the Company's use of the proceeds from the Securities; it shall not be
responsible for any statement in the Securities or any coupons; it shall not
be responsible for any overissue; it shall not be responsible for determining
whether the form and terms of any Securities or coupons were established in
conformity with this Indenture; and it shall not be responsible for
determining whether any Securities were issued in accordance with this
Indenture.
SECTION 7.04. Notice of Defaults.
If a Default occurs and is continuing on a series and if it is known
to the Trustee, the Trustee shall mail a notice of the Default within 90 days
after it occurs to Holders of Registered Securities of the series. Except in
the case of a Default in payment on a series, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interest of Holders of the
series. The Trustee shall withhold notice of a Default described in Section
6.01(4) until at least 90 days after it occurs.
SECTION 7.05. Reports by Trustee to Holders.
Any report required by TIA Section 313(a) to be mailed to
Securityholders shall be mailed by the Trustee on or before July 15 of each
year.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which any Securities
are listed. The Company shall notify the Trustee when any Securities are
listed on a stock exchange.
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SECTION 7.06. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable out-of-
pocket expenses incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee (including its officers,
directors and employees) against any loss or liability incurred by it. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall
pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities and any coupons on all money
or property held or collected by the Trustee, except that held in trust to pay
principal or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive any termination or
discharge of this Indenture (including without limitation any termination
under any Bankruptcy Law) and the resignation or removal of the Trustee.
SECTION 7.07. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee with the Company's
consent.
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The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA Section 310(a) or TIA
Section 310(b) or with Section 7.09;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of the Trustee
or its property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(5) or (6) occurs
with respect to the Trustee.
The Company also may remove the Trustee with or without cause if the
Company so notifies the Trustee six months in advance and if no Default occurs
or is continuing during the six-month period.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the Securities may petition
any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with TIA Section 310(a) or TIA
Section 310(b) or with Section 7.09, any Securityholder may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Registered Securities. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the Lien provided for in Section 7.06.
SECTION 7.08. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
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SECTION 7.09. Trustee's Capital and Surplus.
The Trustee at all times shall have a combined capital and surplus of
at least $10,000,000 as set forth in its most recent published report of
condition.
ARTICLE 8--DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with their terms
and, unless the Securities Resolution establishing the series otherwise
provides, in accordance with this Article.
The Company at any time may terminate as to a series all of its
obligations under this Indenture, the Securities of a series and any related
coupons ("legal defeasance option"). The Company at any time may terminate as
to a series its obligations, if any, under Section 4.07 and any other
restrictive covenants which may be applicable to a particular series
("covenant defeasance option"). However, in the case of the legal defeasance
option, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.08, 7.06, 7.07 and 8.04 shall survive until the Securities of the series are
no longer outstanding; thereafter the Company's obligations in Section 7.06
shall survive.
The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option. If the Company
exercises its legal defeasance option, a series may not be accelerated because
of an Event of Default. If the Company exercises its covenant defeasance
option, a series may not be accelerated by reference to Section 4.07 or any
other restrictive covenants which may be applicable to a particular series so
defeased under the terms of the series.
The Trustee upon request shall acknowledge in writing the discharge
of those obligations that the Company terminates.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance option
or its covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the Trustee or
another trustee money or U.S. Government Obligations;
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(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and
interest when due on the deposited U.S. Government Obligations
without reinvestment plus any deposited money without
investment will provide cash at such times and in such amounts
as will be sufficient to pay principal and interest when due on
all the Securities of the series to maturity or redemption, as
the case may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a conflicting
interest under TIA Section 310(a) or TIA Section 310(b) as to
another series;
(6) the Company delivers to the Trustee an Opinion of Counsel to
the effect that Holders of the series will not recognize
income, gain or loss for Federal income tax purposes as a
result of the defeasance; and
(7) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(5) or (6) occurs
that is continuing at the end of the period.
Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date
in accordance with Article 3.
"U.S. Government Obligations" means securities which are direct
obligations of (i) the United States or (ii) an agency or instrumentality of
the United States, the payment of which is unconditionally guaranteed by the
United States, which, in either case, have the full faith and credit of the
United States pledged for payment and are not callable at the issuer's option,
or certificates representing an ownership interest in such obligations.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.02. It shall apply the deposited
money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal and interest
on Securities of the defeased series.
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SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years. After payment to the Company,
Securityholders entitled to the money must look to the Company for payment as
unsecured general creditors unless an abandoned property law designates
another person.
ARTICLE 9--AMENDMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the Securities
or any coupons without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide that specific provisions of this Indenture shall not
apply to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series; or
(6) to make any change that does not materially adversely affect
the rights of any Securityholder.
SECTION 9.02. With Consent of Holders.
The Company and the Trustee may amend this Indenture, the Securities
and any coupons with the written consent of the Holders of a majority in
principal amount of the Securities of all series affected by the amendment
voting as one class. However, without the consent of each Securityholder
affected, an amendment under this Section may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment;
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(2) reduce the interest on or change the time for payment of
interest on any Security;
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Security or reduce
the amount of principal of any Discounted Security that would
be due upon an acceleration thereof;
(5) change the currency in which principal or interest on a
Security is payable; or
(6) make any change in Section 6.04 or 9.02, except to increase the
amount of Securities whose Holders must consent to an amendment
or waiver or to provide that other provisions of this Indenture
cannot be amended or waived without the consent of each
Securityholder affected thereby.
An amendment of a provision included solely for the benefit of one or
more series does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a proposed
amendment or waiver; it is sufficient if they consent to the substance
thereof.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 9.01 or 9.02 shall be set forth
in a supplemental indenture that complies with the TIA as then in effect.
If a provision of the TIA requires or permits a provision of this
Indenture and the TIA provision is amended, then the Indenture provision shall
be automatically amended to like effect.
SECTION 9.04. Effect of Consents.
An amendment or waiver becomes effective in accordance with its terms
and thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security
that evidences the same debt as the consenting Holder's Security. Any Holder
or subsequent Holder may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or waiver becomes
effective.
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The Company may fix a record date for the determination of Holders of
Registered Securities entitled to give a consent. The record date shall not
be less than 10 nor more than 60 days prior to the first written solicitation
of Securityholders.
SECTION 9.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security thereafter authenticated. The Company may
issue in exchange for affected Securities new Securities that reflect the
amendment or waiver.
SECTION 9.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that adversely
affects its rights. The Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate each stating that the execution of any amendment or supplement or
waiver authorized pursuant to this Article is authorized or permitted by this
Indenture, and that such amendment or supplement or waiver constitutes the
legal, valid and binding obligation of the Company.
ARTICLE 10--MISCELLANEOUS
SECTION 10.01. Trust Indenture Act.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not expressly set forth herein.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
SECTION 10.02. Notices.
Any notice by one party to another is duly given if in writing and
delivered in person, sent by facsimile transmission confirmed by mail or
mailed by first-class mail to the other's address shown below:
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Company: Wisconsin Electric Power Company
231 West Michigan Street
P.O. Box 2046
Milwaukee, WI 53201
Attention: Corporate Secretary
Trustee: Firstar Trust Company
777 East Wisconsin Avenue
Milwaukee, WI 53202
Attention: Corporate Trust Department
A party by notice to the other parties may designate additional or
different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to his address
shown on the register kept by the Transfer Agent or on the list referred to in
Section 2.06. Failure to mail a notice to a Securityholder or any defect in a
notice mailed to a Securityholder shall not affect the sufficiency of the
notice mailed to other Securityholders or the sufficiency of any published
notice.
If a notice is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice to Securityholders, it shall mail a
copy to the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice
required to be mailed or to publish a notice required to be published, the
Company may give such substitute notice as the Trustee approves. Failure to
publish a notice as required or any defect in it shall not affect the
sufficiency of any mailed notice.
All notices shall be in the English language, except that any
published notice may be in an official language of the country of publication.
A "notice" includes any communication required by this Indenture.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall if so requested furnish to
the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
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(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such cove-
nant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 10.05. Rules by Company and Agents.
The Company may make reasonable rules for action by or a meeting of
Securityholders. An Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 10.06. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open. If a payment date is a Legal
Holiday at a place of payment, unless the Securities Resolution establishing a
series otherwise provides with respect to Securities of the series, payment
may be made at that place on the next succeeding day that is not a Legal Holi-
day, and no interest shall accrue for the intervening period.
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SECTION 10.07. No Recourse Against Others.
All liability described in the Securities of any director, officer,
employee or stockholder, as such, of the Company is waived and released.
SECTION 10.08. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 10.09. Governing Law.
The laws of the State of Wisconsin shall govern this Indenture, the
Securities and any coupons, unless federal law governs.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
WISCONSIN ELECTRIC POWER COMPANY
(CORPORATE SEAL)
By ________________________________
Richard A. Abdoo
Chairman of the Board
and Chief Executive Officer
Attest:
______________________
Ann Marie Brady
Secretary
FIRSTAR TRUST COMPANY
By _______________________________
(CORPORATE SEAL) Joseph S. Quinn
Vice President
Attest:
_________________________
Yvonne Siira
Assistant Secretary
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(THIS PAGE INTENTIONALLY LEFT BLANK)
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<PAGE> 44
STATE OF WISCONSIN,)
) ss.:
COUNTY OF MILWAUKEE)
On this ____ day of December, 1995, before me personally appeared
Richard A. Abdoo and Ann Marie Brady to me personally known who being by me
severally duly sworn, did say: that Richard A. Abdoo is Chairman of the Board
and Chief Executive Officer and Ann Marie Brady is Secretary of WISCONSIN
ELECTRIC POWER COMPANY, and that the seal affixed to the foregoing instrument
is the corporate seal of said corporation and that said instrument was signed
and sealed on behalf of said corporation by authority of its Board of
Directors; and said Richard A. Abdoo and Ann Marie Brady severally
acknowledged said instrument to be the free act and deed of said corporation.
______________________________
Notary Public
State of Wisconsin
My Commission ________________
(SEAL OF NOTARY PUBLIC)
STATE OF WISCONSIN,)
) ss.:
COUNTY OF MILWAUKEE)
On this ____ day of December, 1995, before me personally appeared Joseph
S. Quinn and Yvonne Siira to me personally known, who being by me severally
duly sworn, did say: that Joseph S. Quinn is a Vice President and Yvonne
Siira is an Assistant Secretary of FIRSTAR TRUST COMPANY, and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation
and that said instrument was signed and sealed on behalf of said corporation
by authority of its Board of Directors; and said Joseph S. Quinn and Yvonne
Siira severally acknowledged said instrument to be the free act and deed of
said corporation.
_______________________________
Notary Public
State of Wisconsin
My Commission _________________
(SEAL OF NOTARY PUBLIC)
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(THIS PAGE INTENTIONALLY LEFT BLANK)
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EXHIBIT A
A Form of Registered Security
No._____________ $_____________
WISCONSIN ELECTRIC POWER COMPANY
[Title of Security]
WISCONSIN ELECTRIC POWER COMPANY
promises to pay to ______________________________________________
or registered assigns
the principal sum of ____________ Dollars on ______________, ____
Interest Payment Dates: ___________________
Record Dates: ___________________
Dated:
FIRSTAR TRUST COMPANY WISCONSIN ELECTRIC POWER COMPANY
Transfer Agent and Paying Agent
by
______________________________
Authenticated: [Title of Authorized Officer]
FIRSTAR TRUST COMPANY (CORPORATE SEAL)
Registrar, by
______________________________ ______________________________
Authorized Signature [Assistant] Secretary
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<PAGE> 47
WISCONSIN ELECTRIC POWER COMPANY
[Title of Security]
1. Interest.(1)
Wisconsin Electric Power Company (the "Company"), a Wisconsin
corporation, promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay
interest semiannually on _________________ and _________________ of
each year commencing ________________, 19__. Interest on the
Securities will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from
_________________, 19__. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment.(2)
The Company will pay interest on the Securities to the persons who
are registered holders of Securities at the close of business on the
record date for the next interest payment date, except as otherwise
provided in the Indenture. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such
money. It may mail an interest check to a holder's registered
address.
3. Securities Agents.(2A)
Initially, Firstar Trust Company will act as Paying Agent, Transfer
Agent and Registrar. The Company may change any Paying Agent or
Transfer Agent without notice. The Company or any Affiliate may act
in any such capacity. Subject to certain conditions, the Company may
change the Trustee.
4. Indenture.
The Company issued the securities of this series (the "Securities")
under an Indenture dated as of December 1, 1995 (the "Indenture")
between the Company and Firstar Trust Company (the "Trustee"). The
terms of the Securities include those stated in the Indenture and in
the Securities Resolution establishing the Securities and those made
part of the Indenture by the Trust Indenture Act of 1939 (15 U.S.
Code Sections 77aaa-77bbbb). Securityholders are referred to the
Indenture, the Securities Resolution and such Act for a statement of
such terms.
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5. Optional Redemption.(3)
On or after _____________, ____, the Company may redeem all the
Securities at any time or some of them from time to time at the
following redemption prices (expressed in percentages of principal
amount), plus accrued interest to the redemption date.
If redeemed during the 12-month period beginning _______________,
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.(4)
The Company will redeem $____________ principal amount of Securities
on _________________________ and on each _______________ thereafter
through ____________________ at a redemption price of 100% of
principal amount, plus accrued interest to the redemption date.(5)
The Company may reduce the principal amount of Securities to be
redeemed pursuant to this paragraph by subtracting 100% of the
principal amount (excluding premium) of any Securities (i) that the
Company has acquired or that the Company has redeemed other than
pursuant to this paragraph and (ii) that the Company has delivered to
the Registrar for cancellation. The Company may so subtract the same
Security only once.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $____________ principal amount of
Securities on ________________________ and on each __________________
thereafter through __________________ at a redemption price of 100%
of principal amount, plus accrued interest to the redemption date.
8. Notice of Redemption.(7)
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of Securities
to be redeemed at his registered address.
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9. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in
denominations of $1,000(8) and whole multiples of $1,000. The
transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Transfer Agent may
require a holder, among other things, to furnish appropriate endorse-
ments and transfer documents and to pay any taxes and fees required
by law or the Indenture. The Transfer Agent need not exchange or
register the transfer of any Security or portion of a Security
selected for redemption. Also, it need not exchange or register the
transfer of any Securities for a period of 15 days before a selection
of Securities to be redeemed.
10. Persons Deemed Owners.
The registered holder of a Security may be treated as its owner for
all purposes.
11. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal
amount of the securities of all series affected by the amendment.(9)
Subject to certain exceptions, a default on a series may be waived
with the consent of the holders of a majority in principal amount of
the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity,
omission, defect or inconsistency; to provide for assumption of Com-
pany obligations to Securityholders; or to make any change that does
not materially adversely affect the rights of any Securityholder.
12. Restrictive Covenants.(10)
The Securities are unsecured general obligations of the Company
limited to $____________ principal amount. The Indenture does not
limit other unsecured debt. Section 4.07 of the Indenture, which if
applicable limits certain mortgages and other liens, [will] [will
not] apply with respect to the Securities. [The limitations are
subject to a number of important qualifications and exceptions.]
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13. Successors.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
14. Defeasance Prior to Redemption or Maturity.(11)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the
Securities to redemption or maturity. U.S. Government Obligations
are securities backed by the full faith and credit of the United
States of America or certificates representing an ownership interest
in such Obligations.
15. Defaults and Remedies.
An Event of Default(12) includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default for 60 days in the payment of any sinking fund
obligation; default by the Company for a specified period after
notice to it in the performance of any of its other agreements
applicable to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided for in the
series. If an Event of Default occurs and is continuing, the Trustee
or the holders of at least 25% in principal amount of the Securities
may declare the principal(13) of all the Securities to be due and
payable immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, holders of a majority in
principal amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding
notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
-45-
<PAGE> 51
16. Trustee Dealings with Company.
Firstar Trust Company, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with those persons, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
18. Authentication.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
19. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as: TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian),
U/G/M/A (=Uniform Gifts to Minors Act), and U/T/M/A (=Uniform
Transfers to Minors Act).
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the Securities Resolution, which
contains the text of this Security in larger type. Requests may be made to:
Corporate Secretary, Wisconsin Electric Power Company, 231 West Michigan
Street, P.O. Box 2046, Milwaukee, WI 53201.
-46-
<PAGE> 52
EXHIBIT B
A Form of Bearer Security
No. _____________ $_____________
WISCONSIN ELECTRIC POWER COMPANY
[Title of Security]
WISCONSIN ELECTRIC POWER COMPANY
promises to pay to bearer
the principal sum of ______________ Dollars on ____________, ____
Interest Payment Dates: _____________________________
Dated:
FIRSTAR TRUST COMPANY WISCONSIN ELECTRIC POWER COMPANY
Transfer Agent and Paying Agent
by
_____________________________
Authenticated: [Title of Authorized Officer]
FIRSTAR TRUST COMPANY (CORPORATE SEAL)
Registrar, by
_____________________________ ___________________________
Authorized Signature [Assistant] Secretary
-47-
<PAGE> 53
WISCONSIN ELECTRIC POWER COMPANY
[Title of Security]
1. Interest.(1)
Wisconsin Electric Power Company (the "Company"), a Wisconsin
corporation, promises to pay to bearer interest on the principal
amount of this Security at the rate per annum shown above. The
Company will pay interest semiannually on __________________________
and __________________________ of each year commencing
_________________, 19__. Interest on the Securities will accrue from
the most recent date to which interest has been paid or, if no
interest has been paid, from ______________, 19__. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.(2)
Holders must surrender Securities and any coupons to a Paying Agent
to collect principal and interest payments. The Company will pay
principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such
money.
3. Securities Agents.(2A)
Initially, Firstar Trust Company will act as Transfer Agent, Paying
Agent and Registrar. The Company may change any Paying Agent or
Transfer Agent without notice. The Company or any Affiliate may act
in any such capacity. Subject to certain conditions, the Company may
change the Trustee.
4. Indenture.
The Company issued the securities of this series (the "Securities")
under an Indenture dated as of December 1, 1995 (the "Indenture")
between the Company and Firstar Trust Company (the "Trustee"). The
terms of the Securities include those stated in the Indenture and the
Securities Resolution establishing the series and those made part of
the Indenture by the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb). Securityholders are referred to the
Indenture, the Securities Resolution and such Act for a statement of
such terms.
5. Optional Redemption.(3)
On or after ____________, ____, the Company may redeem all the
Securities at any time or some of them from time to time at the
-48-
<PAGE> 54
following redemption prices (expressed in percentages of principal
amount), plus accrued interest to the redemption date.
If redeemed during the 12-month period beginning ___________________,
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.(4)
The Company will redeem $_________ principal amount of Securities on
__________________ and on each __________________ thereafter through
_________________ at a redemption price of 100% of principal amount,
plus accrued interest to the redemption date(5). The Company may
reduce the principal amount of Securities to be redeemed pursuant to
this paragraph by subtracting 100% of the principal amount (excluding
premium) of any Securities (i) that the Company has acquired or that
the Company has redeemed other than pursuant to this paragraph and
(ii) that the Company has delivered to the Registrar for
cancellation. The Company may so subtract the same Security only
once.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $____________ principal amount of
Securities on __________________ and on each __________________
thereafter through __________________ at a redemption price of 100%
of principal amount, plus accrued interest to the redemption date.
8. Notice of Redemption.(7)
Notice of redemption will be published once in an Authorized
Newspaper in the City of New York and if the Securities are listed on
any stock exchange located outside the United States and such stock
exchange so requires, in any other required city outside the United
States at least 30 days but not more than 60 days before the
redemption date. Notice of redemption also will be mailed to holders
who have filed their names and addresses with the Transfer Agent
within the two preceding years. A holder of Securities may miss
important notices if he fails to maintain his name and address with
the Transfer Agent.
-49-
<PAGE> 55
9. Denominations, Transfer, Exchange.
The Securities are in bearer form with coupons in denominations of
$5,000(8) and whole multiples of $5,000. The Securities may be
transferred by delivery and exchanged as provided in the Indenture.
Upon an exchange, the Transfer Agent may require a holder, among
other things, to furnish appropriate documents and to pay any taxes
and fees required by law or the Indenture. The Transfer Agent need
not exchange any Security or portion of a Security selected for
redemption. Also, it need not exchange any Securities for a period
of 15 days before a selection of Securities to be redeemed.
10. Persons Deemed Owners.
The holder of a Security or coupon may be treated as its owner for
all purposes.
11. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal
amount of the securities of all series affected by the amendment.(9)
Subject to certain exceptions, a default on a series may be waived
with the consent of the holders of a majority in principal amount of
the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity,
omission, defect or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any
Securityholder.
12. Restrictive Covenants.(10)
The Securities are unsecured general obligations of the Company
limited to $____________ principal amount. The Indenture does not
limit other unsecured debt. Section 4.07 of the Indenture, which if
applicable limits certain mortgages and other liens, [will] [will
not] apply with respect to the Securities. [The limitations are
subject to a number of important qualifications and exceptions.]
13. Successors.
When a successor assumes all the obligations of the Company under the
Securities, any coupons and the Indenture, the Company will be
released from those obligations.
-50-
<PAGE> 56
14. Defeasance Prior to Redemption or Maturity.(11)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities, any coupons and
the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity. U.S. Government
Obligations are securities backed by the full faith and credit of the
United States of America or certificates representing an ownership
interest in such Obligations.
15. Defaults and Remedies.
An Event of Default(12) includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default for 60 days in the making of any sinking fund
payment; default by the Company for a specified period after notice
to it in the performance of any of its other agreements applicable to
the Securities; certain events of bankruptcy or insolvency; and any
other Event of Default provided for in the series. If an Event of
Default occurs and is continuing, the Trustee or the holders of at
least 25% in principal amount of the Securities may declare the
principal(13) of all the Securities to be due and payable
immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, holders of a majority in
principal amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding
notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
16. Trustee Dealings with Company.
Firstar Trust Company, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with those persons, as if it were not Trustee.
-51-
<PAGE> 57
17. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
18. Authentication.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
19. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as: TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian),
U/G/M/A (=Uniform Gifts to Minors Act), and U/T/M/A (=Uniform
Transfers to Minors Act).
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the Securities Resolution, which
contains the text of this Security in larger type. Requests may be made to:
Corporate Secretary, Wisconsin Electric Power Company, 231 West Michigan
Street, P.O. Box 2046, Milwaukee, WI 53201.
-52-
<PAGE> 58
[FACE OF COUPON]
..............
[$]...........
Due...........
WISCONSIN ELECTRIC POWER COMPANY
[Title of Security]
Unless the Security attached to this coupon has been called for redemption,
Wisconsin Electric Power Company (the "Company") will pay to bearer, upon
surrender, the amount shown hereon when due. This coupon may be surrendered
for payment to any Paying Agent listed on the back of this coupon unless the
Company has replaced such Agent. Payment may be made by check. This coupon
represents six months' interest.
___________________________________
By_________________________________
[REVERSE OF COUPON]
PAYING AGENTS
-53-
<PAGE> 59
(THIS PAGE INTENTIONALLY LEFT BLANK)
-54-
<PAGE> 60
NOTES TO EXHIBITS A AND B
(1) If the Security is not to bear interest at a fixed rate per annum, insert
a description of the manner in which the rate of interest is to be
determined. If the Security is not to bear interest prior to maturity,
so state.
(2) If the method or currency of payment is different, insert a statement
thereof.
(2A) As is done in Section 2.03 of the Indenture, the Trustee must be
appointed Registrar under Section 182.23, Wis. Stats., and Wisconsin
Electric Power Company's Bylaws as in effect as of the date of this
Indenture, for officers' signatures on Securities to be in facsimile.
(3) If applicable. If the Security is to be subject to a nonrefunding
restriction, insert a brief summary thereof. If the redemption is to be
subject to a condition, insert a brief summary thereof.
(4) If applicable.
(5) If the Security is a Discounted Security, insert amount to be redeemed or
method of calculating such amount.
(6) If applicable. Also insert, if applicable, provisions for repayment of
Securities at the option of the Securityholder.
(7) If applicable. If the Company may condition such redemption on the
happening of a stated event, in which case the notice will so provide,
insert a brief summary thereof.
(8) If applicable. Insert additional or different denominations.
(9) If different terms apply, insert a brief summary thereof.
(10) If applicable. If the Security is to have the benefit of additional or
different covenants, insert a brief summary thereof.
(11) If applicable. If different defeasance terms apply, insert a brief
summary thereof.
(12) If additional or different Events of Default apply, insert a brief
summary thereof.
(13) If the Security is a Discounted Security, set forth the amount due and
payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted and Bearer
Securities.
-55-
<PAGE> 61
(THIS PAGE INTENTIONALLY LEFT BLANK)
-56-
<PAGE> 62
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. no.)
and irrevocably appoint ___________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another
to act for him.
Date: _______________ Your Signature: ________________________
________________________
(Sign exactly as your name appears on the face of this Security)
[Signature Guaranteed:
___________________________________]
-57-
<PAGE> 1
EXHIBIT (5)
[WE LETTERHEAD]
November 15, 1995
Wisconsin Electric Power Company
231 West Michigan Street
P.O. Box 2046
Milwaukee, WI 53201
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by Wisconsin Electric Power Company (the "Company")
with the Securities and Exchange Commission (the "SEC") under the Securities
Act of 1933 with respect to the proposed offering pursuant to the combined
prospectus (the "Prospectus") contained in the Registration Statement of up to
$400,000,000 aggregate principal amount of (a) one or more new series of the
Company's First Mortgage Bonds (each such series being hereinafter referred to
as a "Series of New Bonds," collectively the "New Bonds") and/or (b) one or
more new series of the Company's debt securities (the "Debt Securities") (each
such series being hereinafter referred to as a "Series of Securities,"
collectively the "Securities").
As Director-Legal Services Department of the Company, I have examined (i) the
Registration Statement, (ii) the Mortgage and Deed of Trust dated October 28,
1938, from the Company to Firstar Trust Company (formerly First Wisconsin
Trust Company), as Trustee, as supplemented and amended, and as proposed to be
supplemented by a Supplemental Indenture relating to each Series of New Bonds
(such Mortgage and Deed of Trust, as so supplemented and amended and to be
supplemented in respect of a Series of New Bonds, being herein called the
"Mortgage" relating to such Series of New Bonds), (iii) the form of proposed
Indenture (including, as exhibits, proposed forms of Registered Security and
Bearer Security thereunder) from the Company to Firstar Trust Company, as
Trustee, providing for the issuance of the Securities from time to time in one
or more Series, pursuant to the terms of one or more Securities Resolutions or
supplemental indentures creating such Series (the "Indenture"), (iv) minutes
of the meetings of the Company's Board of Directors held on April 28, 1993,
July 26, 1995 and October 25, 1995, (v) the order dated November 11, 1993 of
the Public Service Commission of Wisconsin (the "PSCW") with respect to the
New Bonds and the Securities, for which a two-year extension of the scheduled
December 31, 1995 expiration date has been requested, and the order dated
November 29, 1993, as amended by the order dated October 12, 1994, of the
Michigan Public Service Commission (the "MPSC") with respect to the New Bonds
and the Securities, for which a two-year extension of the scheduled December
31, 1995 expiration date has been requested, and (vi) such other documents and
records, and such matters of law, as I have deemed necessary or advisable for
the purposes of this opinion. I note that since $98,350,000 aggregate
principal amount of the up to $400,000,000 aggregate principal amount of debt
securities authorized to be issued under the Company's long-term financing
plan and the PSCW and MPSC financing orders have already been issued, further
authorization by the Board of Directors of the Company and by the PSCW and
MPSC (in addition to the requested extension of the current financing orders)
<PAGE> 2
Wisconsin Electric Power Company
November 15, 1995
Page 2
would be necessary for the issuance of more than $301,650,000 of the
$400,000,000 aggregate principal amount of New Bonds and Securities covered by
the Prospectus.
On the basis of the foregoing, I advise you that, in my opinion:
1. The Company is a corporation duly organized and existing under the laws
of the State of Wisconsin.
2. When (a) the Registration Statement, as it may have been amended or
supplemented, shall have become effective under the Securities Act of
1933 and the Mortgage relating to the New Bonds shall have been
qualified under the Trust Indenture Act of 1939, and (b) in the case of
each Series of New Bonds, the Board of Directors (including any duly
authorized committee thereof) shall have taken all necessary further
action to approve the terms of such Series and of the related
Supplemental Indenture and to authorize the issuance and sale of such
Series as contemplated in the Registration Statement, all requisite PSCW
and MPSC approvals and any other necessary regulatory approvals with
respect to such Series shall be in effect at the time of the issuance of
such Series, and the Supplemental Indenture setting forth the terms of
such Series shall have been duly executed and delivered by the Company
and the Trustee, then, upon execution and delivery of such Series
against payment in accordance with the authorization of the Board of
Directors (including any duly authorized committee thereof), such
regulatory approvals and the Mortgage relating to such Series, such
Series of New Bonds will be legally valid and binding obligations of the
Company, entitled to the benefits and security of the Mortgage relating
to such Series.
3. When (a) the Registration Statement, as it may have been amended or
supplemented, shall have become effective under the Securities Act of
1933 and the Indenture relating to the Securities shall have been
qualified under the Trust Indenture Act of 1939 and duly executed and
delivered by the Company and Trustee, and (b) in the case of each Series
of Securities, the Board of Directors (including any duly authorized
committee thereof) shall have taken all necessary further action to
approve the terms of such Series and of the related Securities
Resolution or supplemental indenture creating such Series and to
authorize the issuance and sale of such Series as contemplated in
the Registration Statement, all requisite PSCW and MPSC approvals and
any other necessary regulatory approvals with respect to such Series
shall be in effect at the time of the issuance of such Series, and the
Securities Resolution or supplemental indenture setting forth the terms
of such Series shall have been duly adopted, or duly executed and
delivered by the Company and the Trustee, as the case may be, then, upon
execution and delivery of such Series against payment in accordance with
the authorization of the Board of Directors (including any duly
authorized committee thereof), such regulatory approvals and the
Indenture relating to such Series, such Series of Securities will be
legally valid and binding obligations of the Company, entitled to the
benefits of the Indenture relating to such Series.
<PAGE> 3
Wisconsin Electric Power Company
November 15, 1995
Page 3
I consent to (a) the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement, and (b) the reference
made to me under or with respect to material under the captions "Legal
Opinions" and "Description of New Bonds" in the Prospectus constituting a part
of the Registration Statement.
Very truly yours,
/s/Walter T. Woelfle
- ----------------------
Walter T. Woelfle
Director-Legal Services Department
WTW/jmd
<PAGE> 1
<TABLE>
Exhibit (12)
WISCONSIN ELECTRIC POWER COMPANY
Statement of Computation of Ratios of Earnings to Fixed Charges
(Unaudited)
(Thousands of Dollars)
<CAPTION>
Year Ended December 31 12 Months
------------------------------------------------ Ended
1990 1991 1992 1993 1994 9/30/95
---- ---- ---- ---- ---- ---------
<S> <C> <C> <C> <C> <C> <C>
Net Income $185,918 $181,569 $161,742 $177,925 $166,945 $217,765
Income Taxes 95,893 94,645 83,898 92,566 93,485 125,183
Pretax Income 281,811 276,214 245,640 270,491 260,430 342,948
FIXED CHARGES:
- --------------
Interest on Long-Term Debt 77,140 74,758 80,251 83,296 81,766 82,551
Amortization of Debt
Premium, Discount & Expense 2,666 2,857 4,592 12,814 13,859 11,930
Other Interest Expense 835 4,849 2,414 2,450 6,020 10,072
Interest Factor of Rents
------------------------
Nuclear Fuel 3,992 3,174 2,098 1,697 1,896 2,441
Other 719 865 982 1,454 992 992
Total Fixed Charges 85,352 86,503 90,337 101,711 104,533 107,986
Earnings Before Income
Taxes & Fixed Charges $367,163 $362,717 $335,977 $372,202 $364,963 $450,934
Ratio of Earnings to
Fixed Charges 4.3x 4.2x 3.7x 3.7x 3.5x 4.2x
</TABLE>
<PAGE> 1
EXHIBIT (23)-(1)
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated January 25, 1995 appearing on page 61 of Wisconsin Electric Power
Company's Annual Report on Form 10-K for the year ended December 31, 1994 and
of our report dated January 25, 1995 appearing on page 25 in Item 8 of
Wisconsin Natural Gas Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994 (File No. 2-2066). We also consent to the reference
to us under the heading "Experts" in such Prospectus.
/s/Price Waterhouse LLP
- -----------------------
PRICE WATERHOUSE LLP
Milwaukee, Wisconsin
November 15, 1995
<PAGE> 1
Exhibit (23)-(3)
[WE LETTERHEAD]
November 15, 1995
Wisconsin Electric Power Company
231 West Michigan Street
P.O. Box 2046
Milwaukee, WI 53201
Ladies and Gentlemen:
I hereby consent to the reference to me under the caption "Legal Opinions" in
the Prospectus constituting a part of the Registration Statement on Form S-3
relating to First Mortgage Bonds and Debt Securities which you are filing
under the Securities Act of 1933. In giving this consent, I do not admit that
I come within the category of persons whose consent is required under Section
7 of the Securities Act of 1933 and the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/James D. Zakrajsheck
- -----------------------
James D. Zakrajsheck
Counsel of the Company
MES/jmd
<PAGE> 1
Exhibit (23)-(4)
[WE LETTERHEAD]
November 15, 1995
Wisconsin Electric Power Company
231 West Michigan Street
P.O. Box 2046
Milwaukee, WI 53201
Ladies and Gentlemen:
I hereby consent to the reference to me under the caption "Legal Opinions" in
the Prospectus constituting a part of the Registration Statement on Form S-3
relating to First Mortgage Bonds and Debt Securities which you are filing
under the Securities Act of 1933. In giving this consent, I do not admit that
I come within the category of persons whose consent is required under Section
7 of the Securities Act of 1933 and the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/A. William Finke
- -------------------
A. William Finke
Counsel of the Company
MES/jmd
<PAGE> 1
Exhibit (23)-(5)
[LOOMIS LETTERHEAD]
November 15, 1995
Wisconsin Electric Power Company
231 West Michigan Street
P.O. Box 2046
Milwaukee, WI 53201
Ladies and Gentlemen:
We hereby consent to the reference to our firm under the caption "Legal
Opinions" in the Prospectus constituting a part of the Registration Statement
on Form S-3 relating to First Mortgage Bonds and Debt Securities which you are
filing under the Securities Act of 1933. In giving this consent, we do not
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933.
Very truly yours,
/s/Loomis, Ewert,
Parsley, Davis & Gotting, P.C.
---------------------------------
LOOMIS, EWERT,
PARSLEY, DAVIS & GOTTING, P.C.
<PAGE> 1
Exhibit (23)-(6)
[Q&B LETTERHEAD]
November 15, 1995
Wisconsin Electric Power Company
231 West Michigan Street
P.O. Box 2046
Milwaukee, WI 53201
Ladies and Gentlemen:
We hereby consent to the reference to our firm under the caption "Legal
Opinions" in the Prospectus constituting a part of the Registration Statement
on Form S-3 relating to First Mortgage Bonds and Debt Securities which you are
filing under the Securities Act of 1933. In giving this consent, we do not
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933.
Very truly yours,
/s/Quarles & Brady
------------------
QUARLES & BRADY
<PAGE> 1
Exhibit (23)-(7)
INDEPENDENT AUDITORS' CONSENT
-----------------------------
We consent to the incorporation by reference in the Prospectus constituting
part of this Registration Statement on Form S-3 of Wisconsin Electric Power
Company of our report dated January 27, 1995 appearing on page 17 in Item 8 of
the Annual Report on Form 10-K of Northern States Power Company (Wisconsin)
for the fiscal year ended December 31, 1994 (File No. 10-3140).
/s/Deloitte & Touche LLP
- ------------------------
DELOITTE & TOUCHE LLP
November 15, 1995
Minneapolis, Minnesota
<PAGE> 1
EXHIBIT (24)
Power of Attorney, contained in signature page of
Registration Statement
EXHIBIT (24)
SEE SIGNATURE PAGE OF
REGISTRATION STATEMENT
<PAGE> 1
Exhibit (25)-(1)
Securities and Exchange Commission
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
________________________
Check if an Application to Determine Eligibility of a Trustee
Pursuant to Section 305(b)(2) ___________
________________________
FIRSTAR TRUST COMPANY
(Exact name of trustee as specified in its charter)
Wisconsin 39-0281260
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. National Bank) Identification Number)
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
Kevin C. Schuller, Vice President and Assistant Secretary
Firstar Trust Company
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Telephone (414) 765-5725
(Name, address, and telephone number of agent for service)
WISCONSIN ELECTRIC POWER COMPANY
(Exact name of obligor as specified in its charter)
Wisconsin 39-0476280
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
231 West Michigan Street
P.O. Box 2046
Milwaukee, Wisconsin 53201
(Address of principal executive offices) (Zip Code)
First Mortgage Bonds
(Title of indenture securities)
<PAGE> 2
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Office of Commissioner of Banking, Madison, Wisconsin
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The corporate trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting
securities of the trustee:
As of October 31, 1995
Col. A Col. B
Title of Class Amount Outstanding
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in
any other securities, of the obligor are outstanding, furnish the
following information:
(a) Title of the securities outstanding under each such other
indenture.
Per General Instruction B to Form T-1, no response is
required to this item because the obligor is not presently
in default.
(b) A brief statement of the facts relied upon as a basis for
the claim that no conflicting interest within the meaning of
Section 310(b)(1) of the Act arises as a result of the
trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as
compared with the securities issued under such other
indenture.
Per General Instruction B to Form T-1, no response is
required to this item because the obligor is not presently
in default.
1
<PAGE> 3
Item 5. Interlocking Directorates and Similar Relationships with the
Obligor or Underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the
obligor, identify each such person having any such connection and
state the nature of each such connection.
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 6. Voting Securities of the Trustee Owned by the Obligor or its
Officials.
Furnish the following information as to the voting securities of
the trustee owned beneficially by the obligor and each director,
partner, and executive officer of the obligor:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Owner Title of Class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of
the trustee owned beneficially by each underwriter for the obligor
and each director, partner, and executive officer of each such
underwriter.
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Owner Title of Class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
2
<PAGE> 4
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations
in default by the trustee:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Title of Class Whether Amount owned Percent of
the securities beneficially or held class represented
are voting as collateral security by amount given
or nonvoting for obligations in Col. C
securities in default
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security
for obligations in default any securities of an underwriter for the
obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held by
the trustee:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of
Certain Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security
for obligations in default voting securities of a person who, to
the knowledge of the trustee (1) owns 10 percent or more of the
voting securities of the obligor or (2) is an affiliate, other than
a subsidiary, of the obligor, furnish the following information as
to the voting securities of such person:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
3
<PAGE> 5
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security
for obligations in default any securities of a person who, to the
knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to
each class of securities of such person any of which are so owned
or held by the trustee:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required
to this item because the obligor is not presently in default.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to
the trustee, furnish the following information:
Col. A Col. B Col. C
Nature of indebtedness Amount outstanding Date due
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of
any such default.
Per General Instruction B to Form T-1, no response is
required to this item because the obligor is not presently
in default.
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether
there has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
Per General Instruction B to Form T-1, no response is
required to this item because the obligor is not presently
in default.
4
<PAGE> 6
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each
such affiliation.
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to
be qualified under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the Articles of Association of Firstar Trust Company
as now in effect (incorporated by reference to Exhibit 1 to the
Form T-1 filed by Firstar Trust Company on December 29, 1993 as
Exhibit 25 to the Registration Statement on Form S-3 of
Wisconsin Electric Power Company, Registration No. 33-51749
(the "1993 Form T-1")).
2. Certificate of authority of the Trustee to commence business
(contained in Exhibit 1 hereto).
3. Authorization of the Trustee to exercise corporate trust powers
(contained in Exhibit 1 hereto).
4. A copy of the existing By-Laws of Firstar Trust Company
(incorporated by reference to Exhibit 4 to the 1993 Form T-1).
6. The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939 (filed herewith).
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority (incorporated by reference
to Exhibit 7 to the Form T-1 filed by Firstar Trust Company on
July 7, 1995 as Exhibit 25.01 to the Registration Statement on
Form S-3 of Wisconsin Power and Light Company, Registration No.
33-60917).
5
<PAGE> 7
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Firstar Trust Company, a corporation organized and existing under the
laws of the State of Wisconsin, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Milwaukee, and State of Wisconsin, on the 15th day of November,
1995.
FIRSTAR TRUST COMPANY
(Trustee)
By: /s/ Joseph S. Quinn
-------------------------------------
Joseph S. Quinn, First Vice President
(Name and Title)
By: /s/ Yvonne Siira
-------------------------------------
Yvonne Siira, Assistant Secretary
(Name and Title)
6
<PAGE> 8
EXHIBIT 6
(Form T-1)
CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
Firstar Trust Company, as Trustee herein named, hereby consents that
reports of examination of said Trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
FIRSTAR TRUST COMPANY,
as Trustee
By: /s/ Joseph S. Quinn
-------------------------------------
Joseph S. Quinn, First Vice President
(Name and Title)
By: /s/ Yvonne Siira
-------------------------------------
Yvonne Siira, Assistant Secretary
(Name and Title)
Dated: November 15, 1995
7
<PAGE> 1
Exhibit (25)-(2)
Securities and Exchange Commission
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
________________________
Check if an Application to Determine Eligibility of a Trustee
Pursuant to Section 305(b)(2) ___________
________________________
FIRSTAR TRUST COMPANY
(Exact name of trustee as specified in its charter)
Wisconsin 39-0281260
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. National Bank) Identification Number)
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
Kevin C. Schuller, Vice President and Assistant Secretary
Firstar Trust Company
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Telephone (414) 765-5725
(Name, address, and telephone number of agent for service)
WISCONSIN ELECTRIC POWER COMPANY
(Exact name of obligor as specified in its charter)
Wisconsin 39-0476280
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
231 West Michigan Street
P.O. Box 2046
Milwaukee, Wisconsin 53201
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of indenture securities)
<PAGE> 2
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Office of Commissioner of Banking, Madison, Wisconsin
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The corporate trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting
securities of the trustee:
As of October 31, 1995
Col. A Col. B
Title of class Amount outstanding
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in
any other securities, of the obligor are outstanding, furnish the
following information:
(a) Title of the securities outstanding under each such other
indenture.
Per General Instruction B to Form T-1, no response is
required to this item because the obligor is not presently
in default.
(b) A brief statement of the facts relied upon as a basis for
the claim that no conflicting interest within the meaning of
Section 310(b)(1) of the Act arises as a result of the
trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as
compared with the securities issued under such other
indenture.
1
<PAGE> 3
Per General Instruction B to Form T-1, no response is
required to this item because the obligor is not presently
in default.
Item 5. Interlocking Directorates and Similar Relationships with the
Obligor or Underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the
obligor, identify each such person having any such connection and
state the nature of each such connection.
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 6. Voting Securities of the Trustee Owned by the Obligor or its
Officials.
Furnish the following information as to the voting securities of
the trustee owned beneficially by the obligor and each director,
partner, and executive officer of the obligor:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Owner Title of Class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of
the trustee owned beneficially by each underwriter for the obligor
and each director, partner, and executive officer of each such
underwriter.
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Owner Title of Class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
2
<PAGE> 4
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations
in default by the trustee:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Title of Class Whether Amount owned Percent of
the securities beneficially or held class represented
are voting as collateral security by amount given
or nonvoting for obligations in Col. C
securities in default
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security
for obligations in default any securities of an underwriter for the
obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held by
the trustee:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of
Certain Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security
for obligations in default voting securities of a person who, to
the knowledge of the trustee (1) owns 10 percent or more of the
voting securities of the obligor or (2) is an affiliate, other than
a subsidiary, of the obligor, furnish the following information as
to the voting securities of such person:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
3
<PAGE> 5
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security
for obligations in default any securities of a person who, to the
knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to
each class of securities of such person any of which are so owned
or held by the trustee:
As of October 31, 1995
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to
the trustee, furnish the following information:
Col. A Col. B Col. C
Nature of indebtedness Amount outstanding Date due
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of
any such default.
Per General Instruction B to Form T-1, no response is
required to this item because the obligor is not presently
in default.
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether
there has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
Per General Instruction B to Form T-1, no response is
required to this item because the obligor is not presently
in default.
4
<PAGE> 6
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each
such affiliation.
Per General Instruction B to Form T-1, no response is required to
this item because the obligor is not presently in default.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to
be qualified under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the Articles of Association of Firstar Trust Company
as now in effect (incorporated by reference to Exhibit 1 to the
Form T-1 filed by Firstar Trust Company on December 29, 1993 as
Exhibit 25 to the Registration Statement on Form S-3 of
Wisconsin Electric Power Company, Registration No. 33-51749
(the "1993 Form T-1")).
2. Certificate of authority of the Trustee to commence business
(contained in Exhibit 1 hereto).
3. Authorization of the Trustee to exercise corporate trust powers
(contained in Exhibit 1 hereto).
4. A copy of the existing By-Laws of Firstar Trust Company
(incorporated by reference to Exhibit 4 to the 1993 Form T-1).
6. The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939 (filed herewith).
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority (incorporated by reference
to Exhibit 7 to the Form T-1 filed by Firstar Trust Company on
July 7, 1995 as Exhibit 25.01 to the Registration Statement on
Form S-3 of Wisconsin Power and Light Company, Registration No.
33-60917).
5
<PAGE> 7
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Firstar Trust Company, a corporation organized and existing under the
laws of the State of Wisconsin, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Milwaukee, and State of Wisconsin, on the 15th day of November,
1995.
FIRSTAR TRUST COMPANY
(Trustee)
By: /s/ Joseph S. Quinn
-------------------------------------
Joseph S. Quinn, First Vice President
(Name and Title)
By: /s/ Yvonne Siira
-------------------------------------
Yvonne Siira, Assistant Secretary
(Name and Title)
6
<PAGE> 8
EXHIBIT 6
(Form T-1)
CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
Firstar Trust Company, as Trustee herein named, hereby consents that
reports of examination of said Trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
FIRSTAR TRUST COMPANY,
as Trustee
By: /s/ Joseph S. Quinn
-------------------------------------
Joseph S. Quinn, First Vice President
By: /s/ Yvonne Siira
-------------------------------------
Yvonne Siira, Assistant Secretary
Dated: November 15, 1995
7
