<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 1996
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NORTHERN STATES POWER COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
WISCONSIN 39-0508315
(State or other jurisdiction (I.R.S. Employer
of Identification
incorporation or organization) Number)
</TABLE>
100 NORTH BARSTOW STREET, EAU CLAIRE, WISCONSIN 54701
PHONE: (715) 839-2621
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
<TABLE>
<S> <C>
JOHN A. NOER JOHN P. MOORE, JR.
PRESIDENT GENERAL COUNSEL AND SECRETARY
NORTHERN STATES POWER COMPANY NORTHERN STATES POWER COMPANY
100 NORTH BARSTOW STREET 100 NORTH BARSTOW STREET
EAU CLAIRE, WISCONSIN 54701 EAU CLAIRE, WISCONSIN 54701
(715) 839-2578 (715) 839-2592
</TABLE>
(Name, address, including zip code, and telephone number, including area code,
of agents for service)
------------------------
COPY TO:
PETER D. CLARKE
Gardner, Carton & Douglas
321 North Clark Street
Chicago, Illinois 60610
(312) 245-8685
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
------------------------
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, please check the following box
and list the Securities Act registration statement number of the 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. /X/
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT OFFERING PRICE FEE
<S> <C> <C> <C> <C>
First Mortgage Bonds.................... $65,000,000 100%(1) $65,000,000 $22,414
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee.
------------------------
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
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
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, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION DATED MAY 3, 1996
PROSPECTUS
NORTHERN STATES POWER COMPANY
(A WISCONSIN CORPORATION)
FIRST MORTGAGE BONDS
-----------
Northern States Power Company, a Wisconsin corporation (the "Company"), may
offer for sale from time to time up to $65,000,000 aggregate principal amount of
its First Mortgage Bonds (the "New Bonds"), in one or more series, on terms and
in amounts to be determined at the time of sale. The aggregate principal amount,
rate or rates (or method of calculation) and time or times and place of payment
of interest, maturity or maturities, offering price, any redemption terms or
other specific terms of the series of New Bonds in respect of which this
Prospectus is being delivered (the "Offered Bonds") will be set forth in a
supplement to this Prospectus (the "Prospectus Supplement").
The Company may sell the New Bonds through underwriters or dealers, directly
to a limited number of institutional purchasers or through agents. See "Plan of
Distribution." The Prospectus Supplement will set forth the names of any
underwriters, dealers or agents involved in the distribution of the Offered
Bonds and any applicable commissions or discounts and the net proceeds to the
Company from such sale.
--------------
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.
--------------
The date of this Prospectus is , .
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER OR AGENT. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY THE NEW BONDS IN ANY JURISDICTION TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
This Prospectus and the documents incorporated by reference herein contain
certain forward-looking statements and information that are based on
management's beliefs as well as assumptions made by and information currently
available to management. When used in this Prospectus, including any documents
incorporated by reference herein, the words "anticipate," "estimate," "expect"
and similar expressions are intended to identify forward-looking statements.
Such statements are subject to certain risks, uncertainties and assumptions.
Should one or more of these risks or uncertainties materialize, or should
underlying assumptions prove incorrect, actual results may vary materially from
those anticipated, estimated or expected. Electric and gas utilities, such as
the Company, are experiencing considerable uncertainty as the result of changes
in their competitive and regulatory environments. The Company's business also is
generally affected by demographic, economic and weather conditions that are
beyond its control, and could be affected by technological developments in the
production and delivery of energy services.
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 and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information on file can be
inspected at the public reference offices of the Commission currently at 450
Fifth Street, N.W., Washington, D.C. 20549; 500 West Madison Street, Chicago,
Illinois 60661; and 7 World Trade Center, New York, New York 10048. Copies of
such material can be obtained from the Public Reference Section of the
Commission at its principal office at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Company is not required to, and does not,
provide annual reports to holders of its debt securities unless specifically
requested by a holder.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is made to the
Registration Statement.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1995 (the "1995 Form 10-K") filed by the Company with the Commission is
incorporated by reference into this Prospectus.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference in
this Prospectus from the date of 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.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON (INCLUDING ANY
BENEFICIAL OWNER) TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, UPON THE
WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE
DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN INCORPORATED IN THIS PROSPECTUS BY
REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES
SHOULD BE DIRECTED TO THE TREASURER, NORTHERN STATES POWER COMPANY, P.O. BOX 8,
EAU CLAIRE, WISCONSIN 54702 (715-839-2416).
2
<PAGE>
[LOGO]
Northern States Power Company (the "Company"), incorporated in 1901 under
the laws of Wisconsin as the La Crosse Gas and Electric Company, is an operating
public utility company with executive offices at 100 North Barstow Street, Eau
Claire, Wisconsin 54702-0008 (phone: 715-839-2416). The Company is a
wholly-owned subsidiary of Northern States Power Company, a Minnesota
corporation (the "Minnesota Company").
The Company is engaged in the production, transmission and distribution of
electricity to approximately 202,000 retail customers in an area of
approximately 18,900 square miles in northwestern Wisconsin, to approximately
9,200 electric retail customers in an area of approximately 300 square miles in
the western portion of the Upper Peninsula of Michigan, and to 10 wholesale
customers in the same general area. The Company is also engaged in the
distribution and sale of natural gas in the same service territory to
approximately 67,000 customers in Wisconsin and 4,800 customers in Michigan. In
Wisconsin, some of the larger communities the Company provides natural gas to
are Eau Claire, Chippewa Falls, La Crosse, Hudson, Menomonie and Ashland. In the
Upper Peninsula of Michigan the largest community the Company provides natural
gas to is Ironwood. In 1995, the Company derived 83 percent of its total
operating revenues from electric utility operations and 17 percent from gas
utility operations.
PROPOSED MERGER
The Minnesota Company, Wisconsin Energy Corporation, a Wisconsin corporation
("WEC"), Northern Power Wisconsin Corp., a Wisconsin corporation and
wholly-owned subsidiary of the Minnesota Company, and WEC Sub Corp., a Wisconsin
corporation and wholly-owned subsidiary of WEC, have entered into an Agreement
and Plan of Merger, dated as of April 28, 1995 and as amended and restated as of
July 26, 1995 (the "Merger Agreement"), which provides for a strategic business
combination involving the Minnesota Company and WEC in a "merger-of-equals"
transaction (the "Transaction"). The Transaction, which was unanimously approved
by the Boards of Directors of the constituent companies and approved by the
shareholders of both the Minnesota Company and WEC, is expected to close shortly
after all of the conditions to the consummation of the Transaction, including
obtaining applicable regulatory approvals, are met or waived. The goal of the
Minnesota Company and WEC is to receive approvals from all regulatory
authorities by the end of 1996, however, some regulatory authorities have not
established a timetable for their decisions. Therefore, timing of the receipt of
the approvals necessary to complete the Transaction is not known at this time.
In the Transaction, the holding company of the combined enterprise will be
registered under the Public Utility Holding Company Act of 1935, as amended. The
holding company will be named Primergy Corporation ("Primergy") and will be the
parent company of both the Minnesota Company (which, for regulatory reasons,
will reincorporate in Wisconsin) and of WEC's present utility subsidiary,
Wisconsin Electric Power Company ("WEPCO") which will be renamed "Wisconsin
Energy Company." It is anticipated that, following the Transaction, except for
certain gas distribution properties serving the cities of LaCrosse and Hudson,
Wisconsin that will be transferred to the Minnesota Company, the Company will be
merged into Wisconsin Energy Company (the "Company Merger").
The Transaction is subject to customary closing conditions, including,
without limitation, the receipt of all necessary governmental approvals and the
making of all necessary governmental filings, all as more fully described in the
1995 Form 10-K. Additional information concerning the Transaction and the Merger
Agreement is included in the 1995 Form 10-K.
Both the Company and WEPCO recognize that the divestiture of their existing
gas operations is a possibility under the new registered holding company
structure, but will seek approval from the
3
<PAGE>
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.
Following the completion of the Company Merger, the New Bonds and the
Company's other outstanding first mortgage bonds will be obligations of
Wisconsin Energy Company, as a subsidiary of Primergy, and will continue to be
secured by the Indenture as described in this Prospectus. See "DESCRIPTION OF
NEW BONDS -- Security for New Bonds." However, as described above, the New Bonds
will not be an obligation of Primergy or any other subsidiary of Primergy. The
1995 Form 10-K includes pro forma financial information for Wisconsin Energy
Company following the Company Merger.
USE OF PROCEEDS
The proceeds from the sale of the New Bonds will be added to the general
funds of the Company and used for general corporate purposes, which may include
the purchase or redemption of one or more series of outstanding first mortgage
bonds and the repayment of outstanding short-term borrowings incurred in
connection with the Company's continuing construction program. Short-term
borrowings of the Company aggregated $35.8 million as of March 31, 1996. The
specific allocation of the proceeds of a particular series of the Offered Bonds
will be described in the Prospectus Supplement.
CONSTRUCTION PROGRAM AND FINANCING
The Company's construction program for 1996-2000, including allowance for
funds used during construction, is presently estimated to be $303 million (1996:
$54 million; 1997: $60 million; 1998: $68 million; 1999: $64 million; and 2000:
$57 million). Of these construction expenditures, approximately 88% are expected
to be provided by internally generated funds. The foregoing estimates of
construction expenditures and internally generated funds may be subject to
substantial changes due to unforeseen factors, such as changed economic
conditions, competitive conditions, technological innovations, new government
regulations, changed tax laws and rate regulation. In addition, if the Company
Merger is completed as expected, the Company's construction program for 1997 and
future years will be incorporated into Wisconsin Energy Company's overall
construction program.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------
1995 1994 1993 1992
----- ----- ----- -----
<S> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges...................................... 4.2 4.2 4.3 4.3
Wisconsin Energy Company Pro Forma Ratio of Earnings to Fixed Charges... 4.3 3.6 3.7 3.8
<CAPTION>
1991
-----
<S> <C> <C>
Ratio of Earnings to Fixed Charges...................................... 4.4
Wisconsin Energy Company Pro Forma Ratio of Earnings to Fixed Charges... 4.2
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, (i)
earnings consist of income from continuing operations before accounting change
plus fixed charges, federal and state income taxes, deferred income taxes and
investment tax credits; and (ii) fixed charges consist of interest on long-term
debt, other interest charges, the interest component on leases and amortization
of debt discount, premium and expense.
The Wisconsin Energy Company unaudited pro forma ratios of earnings to fixed
charges for each of the years in the five-year period ended December 31, 1995,
give effect to the Company Merger as if it had occurred at January 1, 1991. See
the Notes to Unaudited Pro Forma Combined Condensed Financial Statements of
Wisconsin Energy Company in the 1995 Form 10-K for a description of the
assumptions used to prepare the unaudited pro forma ratios of earnings to fixed
charges.
The annual interest requirement on long-term debt of the Company outstanding
at December 31, 1995, was $16,037,501.
4
<PAGE>
DESCRIPTION OF NEW BONDS
Each series of New Bonds is to be an initial issue of a new series of first
mortgage bonds (the "Bonds") issued under the Trust Indenture dated April 1,
1947 (the "1947 Indenture") as supplemented by 12 supplemental trust indentures
(collectively, the "Supplemental Indentures,"), a Supplemental and Restated
Trust Indenture dated March 1, 1991 (the "Restated Indenture") and a new
supplemental trust indenture for such series of New Bonds (the "New Supplemental
Indenture") all from the Company to Firstar Trust Company (formerly known as
First Wisconsin Trust Company), as trustee (the "Trustee"). The 1947 Indenture,
as supplemented by the Supplemental Indentures, the Restated Indenture and the
New Supplemental Indenture herein are referred to collectively as the
"Indenture." Excluding the New Bonds, three series of Bonds in an aggregate
principal amount of $194,635,000 currently are outstanding under the Indenture.
Copies of the 1947 Indenture, the Supplemental Indentures, the Restated
Indenture and the form of the New Supplemental Indenture are filed as Exhibits
4.01A to 4.01O to the Registration Statement and the statements herein made
(being for the most part succinct summaries of certain provisions of the
Indenture) are subject to the detailed provisions of the 1947 Indenture, the
Supplemental Indentures, the Restated Indenture and the New Supplemental
Indenture which are incorporated herein by this reference.
The Restated Indenture amends and restates the 1947 Indenture and the
Supplemental Indentures. The Restated Indenture became effective and operative
on October 1, 1993.
References are made to specific Article and Section numbers of the Restated
Indenture and the New Supplemental Indenture. Unless the context indicates
otherwise, words or phrases defined in the Restated Indenture or the New
Supplemental Indenture are capitalized and used with the same meanings herein.
TERMS OF NEW BONDS
The New Bonds will be issued as fully registered bonds without coupons in
denominations of multiples of $1,000. New Bonds may be issued in temporary form
if, for any reason, the Company is unable to deliver New Bonds in definitive
form. Principal and interest are to be payable in Milwaukee, Wisconsin, at
Firstar Trust Company. New Bonds will be interchangeable in the manner provided
in Article II of the New Supplemental Indenture. The New Bonds may be issued in
book-entry form through the facilities of a depository. The description of any
book-entry arrangements will be contained in the Prospectus Supplement.
No charge will be made by the Company for any exchange or transfer of New
Bonds, other than for any taxes or other governmental charges.
Reference is made to the Prospectus Supplement that will accompany this
Prospectus for the following terms and other information with respect to the
Offered Bonds: (1) the designation and aggregate principal amount of such
Offered Bonds; (2) the date or dates on which such Offered Bonds will mature;
(3) the rate or rates per annum (or method of calculation) at which such Offered
Bonds will bear interest and the date from which such interest shall accrue; (4)
the dates on which such interest will be payable; (5) the record dates for
payments of interest; and (6) any optional or mandatory redemption terms or
other specific terms applicable to the Offered Bonds. The holders of the
outstanding Bonds do not, and the holders of the New Bonds will not, have the
right to tender such Bonds to the Company for repurchase upon the Company
becoming involved in a highly leveraged or change in control transaction. The
Indenture does not have any provision that is designed specifically in response
to highly leveraged or change in control transactions. However, bondholders
would have the security afforded by the first mortgage lien on substantially all
the Company's property as described under the subcaption "Security for New
Bonds" below. In addition, any change in control transaction and any incurrence
of additional indebtedness (as first mortgage bonds or otherwise) by the Company
in such a transaction would require approval of state utility regulatory
authorities and, possibly, of federal utility regulatory authorities. Management
believes that such approvals would be
5
<PAGE>
unlikely in any transaction that would result in the Company, or a successor to
the Company, including Wisconsin Energy Company, having a highly leveraged
capital structure. See "PROPOSED MERGER."
SECURITY FOR NEW BONDS
In the opinion of counsel for the Company, the New Bonds when issued will be
secured by the Indenture, which constitutes a first mortgage lien, subject only
to Permitted Encumbrances, upon all real and fixed properties now owned by the
Company (except as otherwise stated in this paragraph) for the equal pro rata
security of all Bonds issued or to be issued under the Indenture, subject to the
provisions relating to any sinking fund or similar fund for the benefit of Bonds
of any particular series. There are excepted from the Lien of the Indenture
securities, cash, contracts, receivables, motor vehicles, merchandise, equipment
and supplies, and certain non-utility real property. (Granting Clauses of the
Restated Indenture.) The Indenture contains provisions for subjecting to the
lien thereof (subject to the limitations in Article XVI in the case of
consolidation or merger) all property acquired by the Company after the date of
the 1947 Indenture other than property of the kind mentioned in the preceding
sentence. Such provisions might not be effective as to property acquired within
90 days prior and subsequent to the filing of a case with respect to the Company
under the United States Bankruptcy Code. The opinion of counsel does not cover
titles to easements for flowage rights not presently exercised or titles to
rights-of-way for transmission and distribution facilities, as counsel for the
Company believes that the expense of examination would exceed the cost of
acquiring, by condemnation or purchase, any easements or rights-of-way held
under defective title. The Company has the power of eminent domain in the states
in which it operates.
Permitted Encumbrances include (a) rights of Persons who are parties to
agreements with the Company relating to property owned or used jointly (in
common) by the Company with such Persons, provided (i) that such rights do not
materially impair the use of such jointly owned or used property in the normal
operation of the Company's business and do not materially affect the security
afforded by the Indenture and (ii) that such rights are not inconsistent with
the remedies of the Trustee upon a Completed Default; (b)(i) leases existing at
the Effective Date of the Restated Indenture affecting property owned by the
Company on the Effective Date; (ii) leases which do not interfere in any
material respect with the use of the related property for the purpose for which
it is held by the Company and which will not have material adverse impact on the
security afforded by the Indenture or (iii) other leases relating to not more
than 5% of the sum of the Company's Depreciable Property and Land; and (c) any
mortgage, lien, charge or encumbrance prior or equal to the Lien of the
Indenture, other than a Prepaid Lien, existing at the date any property is
acquired by the Company, provided that at the date of acquisition of such
property: (i) no Default has occurred and is continuing; (ii) the principal
amount of indebtedness outstanding under and secured by such mortgage, lien,
charge or encumbrance shall not exceed 66 2/3% of the lesser of the Cost or Fair
Value of the property so acquired; and (iii) each such mortgage, lien, charge or
encumbrance shall apply only to the property and improvements originally subject
thereto and that the Company shall cause to be closed all mortgages or other
liens existing at the time of acquisition of any property thereafter acquired by
the Company and will permit no additional indebtedness to be issued thereunder
or secured thereby. (Section 1.03 of the Restated Indenture.)
The holders of 66 2/3% of the principal amount of Bonds Outstanding may (a)
consent to the creation or existence of a Prior Lien with respect to up to 50%
of the sum of the Company's Depreciable Property and Land, after giving effect
to such Prior Lien or (b) terminate the Lien of the Indenture with respect to up
to 50% of the sum of the Company's Depreciable Property and Land. (Section
19.02(e) of the Restated Indenture.)
The Indenture is not a lien on the properties of the Minnesota Company. The
Lien of the Indenture will continue to apply only to property and franchises
owned by the Company prior to the Company Merger, and to any additions,
extensions and repairs to such properties acquired or made after the Company
Merger, and will not apply to any property owned by WEPCO prior to the Company
6
<PAGE>
Merger. It is expected that following the Company Merger, Wisconsin Energy
Company's outstanding indebtedness will include first mortgage bonds that were
previously issued by the Company, WEPCO, Wisconsin Natural Gas Company and
Wisconsin Southern Gas Company under separate trust indentures. See "PROPOSED
MERGER" and "RATIO OF EARNINGS TO FIXED CHARGES." It is not expected that any
additional Bonds will be issued under the Indenture following the Company
Merger.
SINKING FUND PROVISIONS
The sinking fund redemption provision, if any, for each series of the New
Bonds will be set forth in the Prospectus Supplement. As an annual sinking fund,
the Company covenants to pay to the Trustee annually on April 1 an amount
sufficient to redeem, on the following June 1, for sinking fund purposes 1% of
the highest amount at any time outstanding of Bonds of the Series due April 1,
2021 and the Bonds of the Series due March 1, 2023. Sinking fund payments may be
offset at the option of the Company by (a) retirement or delivery to the Trustee
of Bonds of the series for which the sinking fund is applicable or (b)
application of Amounts of Established Permanent Additions equal to 150% of the
principal amount of Bonds which would otherwise be required to be retired by the
sinking fund. (Sections 5.04(vi), 5.07 and 13.01(c) of the Restated Indenture.)
The Trustee is required to apply sinking fund money to the purchase or
redemption of Bonds of the series for which such funds are applicable. (Article
XIII of the Restated Indenture.)
MAINTENANCE PROVISIONS
As a Maintenance Fund for the Bonds, the Company covenants to pay to the
Trustee annually on May 1 an amount equal to 2.50% of its Completed Depreciable
Property as of the end of the preceding calendar year, after deducting credits
at the Company's option for (a) maintenance, (b) property retirements offset by
Permanent Additions, (c) retirement of Bonds and (d) Amounts of Established
Permanent Additions. (Section 9.01 of the Restated Indenture.) The Restated
Indenture further provides that to the extent that Maintenance Fund credits
exceed 2.50% of Completed Depreciable Property for any year after 1990, such
excess credits may be applied in future years (a) to offset any Maintenance Fund
deficiency or (b) to increase the Amount of Established Permanent Additions
available for use under the Indenture. (Section 9.05 of the Restated Indenture.)
The Company has covenanted to maintain its properties in adequate repair,
working order and condition. (Section 8.06 of the Restated Indenture.)
ISSUANCE OF ADDITIONAL BONDS
The maximum principal amount of Bonds that may be issued under the Indenture
is not limited except as described below. Additional Bonds may be issued on the
basis of (a) 66 2/3% of the Cost or Fair Value, whichever is less, of Permanent
Additions, after making the required deductions on account of Retired Property
(Article V of the Restated Indenture); (b) retired Bonds that have not been
otherwise used under the Indenture (Article VI of the Restated Indenture); and
(c) deposit of an equal amount of cash with the Trustee, which cash may be
withdrawn on the same basis as additional Bonds may be issued under clauses (a)
and (b) above. (Article VII of the Restated Indenture.)
The New Bonds will be issued under clauses (a) and/or (b) above. At December
31, 1995 the amount of net Permanent Additions available for the issuance of
Bonds exceeded $113 million, of which $97.6 million could be used for the
authentication of $65 million principal amount of the New Bonds. As of December
31, 1995, $81 million of retired Bonds were available for the authentication of
up to $81 million of New Bonds.
No additional Bonds may be issued on the basis of clause (a), clause (b)
under specified conditions, or clause (c) unless the Earnings Applicable to Bond
Interest for a specified twelve month period are equal to twice the annual
interest requirements on the Bonds including those about to be issued, and any
obligations secured by Prior Liens and any indebtedness secured by Permitted
Encumbrances. The calculation of Earnings Applicable to Bond Interest includes
all non-utility revenues of the Company. (Sections 1.03, 5.03, 6.02 and 7.01 of
the Restated Indenture.)
7
<PAGE>
Permanent Additions include: the Company's electric and steam generating,
transmission and distribution properties; the Company's gas storage and
distribution properties; construction work-in-progress; fractional and undivided
property interests of the Company; property used for providing telephone or
other communications services; and engineering, financial, economic,
environmental, geological and legal or other studies, surveys or reports
associated with the acquisition or construction of any Depreciable Property.
(Section 1.03 of the Restated Indenture.)
Earnings Applicable to Bond Interest for the twelve months ended December
31, 1995, would be 4.8 times the annual interest requirements on the Bonds
assuming the issuance of the New Bonds at an assumed interest rate of 8.0%.
Additional Bonds may vary from the Offered Bonds as to maturity, interest rate,
redemption prices, sinking fund and in certain other respects. (Article II of
the Restated Indenture.)
DIVIDENDS ON COMMON STOCK
The Indenture does not restrict the Company's payment of dividends on its
common stock.
RELEASE PROVISIONS
The Indenture contains provisions permitting the release from its lien of
any property upon depositing or pledging cash or certain other property of
comparable Fair Value. The Indenture also contains provisions for the
cancellation, change or alteration of leases, rights-of-way and easements, and
for the surrender and modification of any franchise or governmental consent
subject to certain restrictions, in each case without any release or consent by
the Trustee or accountability thereto for any consideration received by the
Company. (Article XI of the Restated Indenture.)
Under the Indenture, (a) the Company may sell or otherwise dispose of, free
of the Lien of the Indenture, all vessels and marine equipment, railroad cars,
engines and related equipment, airplanes, office furniture and leasehold
interests in property owned by third parties and (b) the Company may enter into
leases with respect to the property subject to the Lien of the Indenture which
do not interfere in any material respect with the use of such property for the
purpose for which it is held by the Company and will not have a material adverse
impact on the security afforded by the Indenture. (Section 11.02(b) of the
Restated Indenture.)
Any of the mortgaged and pledged property may be released from the Lien of
the Indenture without depositing the proceeds from the sale of such property
with the Trustee, if after such release, the Fair Value of the remaining
mortgaged and pledged property of the character of Permanent Additions equals or
exceeds a sum equal to 150% of the aggregate principal amount of Bonds
Outstanding. (Section 11.03(k) of the Restated Indenture.) Upon satisfaction of
the requirements set forth in the Indenture, this provision would permit the
Company to spin-off or otherwise dispose of a substantial amount of assets or a
line of business, including all or a portion of the Company's electric
generation, transmission or distribution assets, or its gas storage and
distribution assets, without depositing cash or property with the Trustee or
obtaining the consent of the bondholders.
REDEMPTION GENERALLY
Moneys on deposit in the Maintenance Fund and the Release Fund under the
Indenture may be used for the purchase or redemption of Bonds, provided that the
Company does not have the power to use any such moneys to redeem any Bond that
is not otherwise redeemable or to redeem any Bond at a price less than the price
at which such Bond could be redeemed pursuant to its terms.
MODIFICATION OF THE INDENTURE
With the consent of the Company, the provisions of the Indenture may be
changed by the affirmative vote of the holders of 66 2/3% in principal amount of
the Bonds Outstanding except that, among other things, the maturity of a Bond
may not be extended, the interest rate reduced, nor the terms of payment of
principal or interest changed without the consent of the holder of each Bond so
affected. (Article XIX of the Restated Indenture.)
8
<PAGE>
CONCERNING THE TRUSTEE
In case of a Completed Default the Trustee may, and upon written request of
the holders of a majority in principal amount of the Bonds then Outstanding
shall, declare the principal of all Bonds then Outstanding and the interest
accrued thereon to be due and payable immediately, and the same shall become due
and payable subject to the right of the holders of the majority in principal
amount of the Bonds then Outstanding upon certain conditions to rescind and
annul such declaration. The Indenture provides in substance that no holder of
any Bond shall have any right to institute any suit, action or proceeding in
equity or at law for the foreclosure of the Indenture or for the appointment of
a receiver or for any other remedy thereunder unless such holder shall have
previously given to the Trustee written notice of default, nor unless also the
holders of 25% in principal amount of the Bonds then Outstanding shall have made
written request to the Trustee to exercise the powers granted by the Indenture
but the right of action of holders of Bonds to enforce payment of the principal
or interest shall not be impaired. As a condition precedent to certain actions
by the Trustee in the enforcement of the Lien of the Indenture and institution
of action on the Bonds, the Trustee may require adequate indemnity against
costs, expenses and liabilities to be incurred thereby. (Article XIV of the
Restated Indenture.)
The Company utilizes some of the commercial banking services offered by an
affiliate of the Trustee.
DEFAULTS
The following is a summary of events defined in the Indenture as Completed
Defaults: (a) default in the payment of principal of or premium, if any, on any
Bond when due and payable, (b) default continued for 30 days in the payment of
interest on any Bond; (c) default continued for 60 days in any sinking fund
payment; (d) default in the covenants of the Company with respect to bankruptcy,
insolvency, assignment or receivership, or (e) default continued for 60 days
after notice to the Company from the Trustee in the performance of any other
covenant, agreement or condition contained in the Indenture. (Section 14.01 of
the Restated Indenture.)
The Trustee is required to give notice to bondholders (1) within 90 days
after the occurrence of a Default known to the Trustee within such period, or
(2) if the Trustee is unaware of a Default during such period, promptly after
the Trustee knows of such Default, unless such Default shall have been cured
before the giving of such notice; provided that, except in the case of a Default
resulting from the failure to make any payment of principal of, or interest on,
any Bonds or to make any sinking fund payment, the Trustee may withhold such
notice upon determination in good faith by the board of directors, the executive
committee or a trust committee of directors and/or responsible officers of the
Trustee that the withholding of such notice is in the interest of the
bondholders. (Article XVII of the Restated Indenture.)
If the Trustee recovers any moneys following a Completed Default, all such
moneys shall be applied in the following order: (i) to the payment of taxes,
assessments or Prior Liens and all costs and expenses, including the payment of
the fees, expenses, liabilities and advances incurred or made by the Trustee,
(ii) to the payment in full of the amounts then due and unpaid for principal and
interest upon the Bonds then Outstanding, and in the case such proceeds shall be
insufficient to pay in full the amounts so due and unpaid, then to the payment
thereof ratably, with interest on overdue principal and interest, and (iii) to
the Company, its successors or assigns. (Section 14.11 of the Restated
Indenture.)
The Company is required to file with the Trustee such information, documents
and reports with respect to compliance by the Company with the conditions and
covenants of the Indenture as may be required by the rules and regulations of
the Commission including a certificate, furnished not less frequently than
annually, as to the Company's compliance with all of the conditions and
covenants under the Indenture. (Section 8.18 of the Restated Indenture.)
9
<PAGE>
GENERAL
Whenever all indebtedness secured by the Indenture shall have been paid, or
adequate provision therefor made, the Trustee shall, upon request of the
Company, cancel and discharge the Lien of the Indenture. (Article XVIII of the
Restated Indenture.) The Company may deposit with the Trustee any combination
of cash or Governmental Obligations in order to provide for the payment of any
series or all of the Bonds Outstanding. Such a deposit could constitute a
taxable event as to the holders of such bonds, creating possible adverse tax
consequences. The Indenture also provides that the Company shall furnish to the
Trustee Officers' Certificates, certificates of an Engineer, Appraiser or other
expert and, in certain cases, Accountants' Certificates in connection with the
authentication of Bonds, the release or release and substitution of property and
certain other matters, and Opinions of Counsel as to the Lien of the Indenture
and certain other matters. (Articles IV, V, VI, VII, XI and XVIII and Section
21.08 of the Restated Indenture.)
LEGAL OPINIONS
Legal opinions relating to the New Bonds will be rendered by John P. Moore,
Jr., 100 North Barstow Street, Eau Claire, Wisconsin, General Counsel for the
Company, by Loomis, Ewert, Ederer, Parsley, Davis & Gotting, 1200 Manufacturer's
Bank of Lansing Building, Lansing, Michigan, special Michigan counsel for the
Company, and by Gardner, Carton & Douglas, 321 North Clark Street, Chicago,
Illinois, counsel for any underwriters, dealers or agents named in a Prospectus
Supplement. Matters pertaining to local laws will be passed upon by counsel for
the Company and as to these matters Gardner, Carton & Douglas will rely on those
opinions. The opinions contained in this Prospectus under the caption
"Description of New Bonds -- Security for New Bonds", are the opinions of John
P. Moore, Jr., who is General Counsel and Secretary of the Company. Gardner,
Carton & Douglas from time to time acts as special counsel to the Company and
the Minnesota Company in connection with certain matters, including the
Transaction.
EXPERTS
The historical financial statements of the Company for the year ended
December 31, 1995; the consolidated historical financial statements of the
Minnesota Company for the year ended December 31, 1995; the consolidated
historical financial statements of WEC; and the historical financial statements
of WEPCO incorporated in this Prospectus by reference to the Company's Annual
Report on Form 10-K, for the year ended December 31, 1995, have been so
incorporated in reliance upon the reports of Price Waterhouse LLP given on the
authority of said firm as experts in auditing and accounting.
The financial statements and the related financial statement schedules of
the Company and the Minnesota Company for the years ended December 31, 1994 and
1993, incorporated in this Prospectus by reference to the Company's Annual
Report on Form 10-K, for the year ended December 31, 1995, have been so
incorporated in reliance upon the reports of Deloitte & Touche LLP (which report
on the Minnesota Company expresses an unqualified opinion and includes an
explanatory paragraph related to the Minnesota Company's change in method of
accounting for postretirement healthcare costs in 1993) given upon the authority
of that firm as experts in accounting and auditing.
PLAN OF DISTRIBUTION
The Company may sell the New Bonds (i) to or through underwriters or
dealers; (ii) directly to one or more purchasers; or (iii) through agents. The
Prospectus Supplement with respect to each series of Offered Bonds will set
forth the terms of the offering of such Offered Bonds, including the name or
names of any underwriters, the purchase price of such Offered Bonds and the
proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public offering
price, any discounts or concessions allowed or reallowed or
10
<PAGE>
paid to dealers and any securities exchanges on which such Offered Bonds may be
listed. Any initial offering price and any discounts, concessions or
commissions allowed or reallowed or paid to dealers may be changed from time to
time.
If underwriters are used in the sale, the Offered Bonds will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The Offered
Bonds may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more of
such firms. The specific managing underwriter or underwriters, if any, will be
set forth in the Prospectus Supplement relating to the Offered Bonds together
with the members of the underwriting syndicate, if any. Unless otherwise set
forth in the Prospectus Supplement, the obligations of the underwriters to
purchase the Offered Bonds offered thereby will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all such Offered
Bonds if any are purchased.
Offered Bonds may be sold directly by the Company or through agents
designated by the Company from time to time. The Prospectus Supplement will set
forth the name of any agent involved in the offer or sale of the Offered Bonds
in respect of which the Prospectus Supplement is delivered and any commissions
payable by the Company to such agent.
Any underwriters, dealers or agents participating in the distribution of the
Offered Bonds may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of the Offered Bonds may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933. Agents
and underwriters may be entitled, under agreements entered into with the
Company, to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act of 1933, or to contributions with
respect to payments which the agents or underwriters may be required to make in
respect thereof. Agents and underwriters may engage in transactions with or
perform services for the Company in the ordinary course of business.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the approximate amount of fees and
expenses payable by the Company (other than underwriting discounts and
commissions) in connection with the issuance of the New Bonds:
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933..................... $ 22,414
Fee of Public Service Commission of Wisconsin......................... 1,000
Fees of Rating Agencies............................................... 30,000
Printing and engraving................................................ 25,000
Accounting services................................................... 40,000
Trustee's charges..................................................... 15,000
Mortgage recording fees............................................... 4,000
Expenses and counsel fees for qualification or registration of the New
Bonds under state securities laws.................................... 10,000
Miscellaneous, including traveling, telephone, copying, shipping,
postage, and other out-of-pocket expenses............................ 20,000
--------
Total............................................................. $167,414
--------
--------
</TABLE>
All but the first two items are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 180.0850 through 180.0859 of the Wisconsin Statutes permit
indemnification of officers and directors of domestic or foreign corporations
under certain circumstances and subject to certain limitations. Pursuant to
authorization contained in the Restated Articles of Incorporation, as amended,
Section 7 of Article II of the Bylaws of the Company contains provisions for
indemnification of its directors and officers consistent with the provisions of
Section 180.0850 through 180.0859 of the Wisconsin Statutes.
The Company has obtained insurance policies indemnifying the Company and the
Company's directors and officers against certain civil liabilities and related
expenses.
ITEM 16. EXHIBITS.
Certain Exhibits listed below and marked with an asterisk (*) were filed
with the Securities and Exchange Commission as Exhibits to certain Registration
Statements under the Exhibit number indicated after each such Exhibit and are
incorporated herein by this reference. These Registration Statements are
identified as follows:
<TABLE>
<S> <C> <C> <C> <C>
(a) No. 2-6982 (c) No. 2-13463+ (e) No. 2-36693+ (g) No. 2-76146 (i) No. 33-20415
(b) No. 2-7825 (d) No. 2-23726+ (f) No. 2-49757+ (h) No. 33-6269 (j) No. 33-39831
</TABLE>
- ------------------------
+ Registration Statement of the Minnesota Company.
S-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
- -------------
<S> <C>
1.01 Form of Underwriting Agreement relating to the New Bonds.
*4.01A (a) Copy of Trust Indenture, dated April 1, 1947, from the Company to Firstar Trust Company (formerly
known as First Wisconsin Trust Company), Trustee. (7.01)
*4.01B (b) Copy of Supplemental Trust Indenture, dated March 1, 1949, being a supplemental instrument to
Exhibit 4.01A hereto. (7.02)
*4.01C (c) Copy of Supplemental Trust Indenture, dated June 1, 1957, being a supplemental instrument to
Exhibit 4.01A hereto. (2.13)
*4.01D (d) Copy of Supplemental Trust Indenture, dated August 1, 1964, being a supplemental instrument to
Exhibit 4.01A hereto. (4.20)
*4.01E (e) Copy of Supplemental Trust Indenture, dated December 1, 1969, being a supplemental instrument to
Exhibit 4.01A hereto. (2.03E)
*4.01F (f) Copy of Supplemental Trust Indenture, dated September 1, 1973, being a supplemental instrument to
Exhibit 4.01A hereto. (2.03F)
*4.01G (g) Copy of Supplemental Trust Indenture, dated February 1, 1982, being a supplemental instrument to
Exhibit 4.01A hereto. (4.01G)
*4.01H (g) Copy of Supplemental Trust Indenture, dated March 1, 1982, being a supplemental instrument to
Exhibit 4.01A hereto. (4.01H)
*4.01I (h) Copy of Supplemental Trust Indenture, dated June 1, 1986, being a supplemental instrument to
Exhibit 4.01A hereto. (4.01I)
*4.01J (i) Copy of Supplemental Trust Indenture, dated March 1, 1988, being a supplemental instrument to
Exhibit 4.01A hereto. (4.01J)
*4.01K (j) Copy of Supplemental and Restated Trust Indenture, dated March 1, 1991, being a supplemental
instrument to Exhibit 4.01A hereto. (4.01K)
4.01L Copy of Supplemental Trust Indenture, dated April 1, 1991, being a supplemental instrument to
Exhibit 4.01A hereto, filed as Exhibit 4.01 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1991, and incorporated herein by reference.
4.01M Copy of Supplemental Trust Indenture, dated March 1, 1993, being a supplemental instrument to
Exhibit 4.01A hereto, filed as Exhibit 4.01A to the Company's Current Report on Form 8-K (File No.
10-3140) dated March 5, 1993, and incorporated herein by reference.
4.01N Copy of Supplemental Trust Indenture, dated October 1, 1993, being a supplemental instrument to
Exhibit 4.01A hereto, filed as Exhibit 4.01A to the Company's Current Report on Form 8-K (File No.
10-3140) dated September 21, 1993, and incorporated herein by reference.
4.01O Form of Supplemental Trust Indenture, for each series of New Bonds, being a supplemental instrument
to Exhibit 4.01A hereto.
5.01 Opinion of John P. Moore, Jr., Esq., as to legality of the New Bonds.
12.01 Computation of ratio of earnings to fixed charges.
12.02 Computation of pro forma ratios of earnings to fixed charges.
23.01 Consent of Independent Public Accountants -- Price Waterhouse LLP, Minneapolis, MN.
23.02 Independent Auditors' Consent -- Deloitte & Touche LLP, Minneapolis, MN.
23.03 Consent of Independent Accountants -- Price Waterhouse LLP, Milwaukee, WI.
23.04 Consent of Legal Counsel.
24.01 Powers of Attorney.
25.01 Form T-1 Statement of Eligibility of Firstar Trust Company to act as Trustee under the Indenture
that will secure the New Bonds.
</TABLE>
S-2
<PAGE>
ITEM 17. UNDERTAKINGS.
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 (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 represented 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; and (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 clauses
(i) and (ii) above 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 clauses is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purposes 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.
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 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
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 foregoing provisions described under 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 the 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 the Act and will
be governed by the final adjudication of such issue.
S-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Eau Claire, and State of Wisconsin, on the 3rd day of
May 1996.
NORTHERN STATES POWER COMPANY
By: /s/ NEAL A. SIIKARLA
-----------------------------------
Neal A. Siikarla, Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------------- ---------------------------- ----------------
JOHN A. NOER
- -------------------------------- Principal Executive Officer May 3, 1996
John A. Noer and Director
NEAL A. SIIKARLA
- -------------------------------- Principal Financial Officer May 3, 1996
Neal A. Siikarla
/s/ DAVID E. RIPKA
- -------------------------------- Principal Accounting Officer May 3, 1996
David E. Ripka
H. LYMAN BRETTING
- -------------------------------- Director May 3, 1996
H. Lyman Bretting
PHILIP M. GELATT
- -------------------------------- Director May 3, 1996
Philip M. Gelatt
WAYNE E. HARRISON
- -------------------------------- Director May 3, 1996
Wayne E. Harrison
RAY A. LARSON, JR.
- -------------------------------- Director May 3, 1996
Ray A. Larson, Jr.
LARRY G. SCHNACK
- -------------------------------- Director May 3, 1996
Larry G. Schnack
LOREN L. TAYLOR
- -------------------------------- Director May 3, 1996
Loren L. Taylor
By: /s/ NEAL A.
SIIKARLA
- --------------------------------
Neal A. Siikarla
(ATTORNEY-IN-FACT)
S-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT METHOD OF
NUMBER DESCRIPTION FILING
- ------------- ------------------------------------------------------------------------------------ -------------
<S> <C> <C>
1.01 Form of Underwriting Agreement relating to the New Bonds............................ DT
*4.01A (a) Copy of Trust Indenture, dated April 1, 1947, from the Company to Firstar Trust
Company (formerly known as First Wisconsin Trust Company), Trustee. (7.01)
*4.01B (b) Copy of Supplemental Trust Indenture, dated March 1, 1949, being a supplemental
instrument to Exhibit 4.01A hereto. (7.02)
*4.01C (c) Copy of Supplemental Trust Indenture, dated June 1, 1957, being a supplemental
instrument to Exhibit 4.01A hereto. (2.13)
*4.01D (d) Copy of Supplemental Trust Indenture, dated August 1, 1964, being a supplemental
instrument to Exhibit 4.01A hereto. (4.20)
*4.01E (e) Copy of Supplemental Trust Indenture, dated December 1, 1969, being a supplemental
instrument to Exhibit 4.01A hereto. (2.03E)
*4.01F (f) Copy of Supplemental Trust Indenture, dated September 1, 1973, being a supplemental
instrument to Exhibit 4.01A hereto. (2.03F)
*4.01G (g) Copy of Supplemental Trust Indenture, dated February 1, 1982, being a supplemental
instrument to Exhibit 4.01A hereto. (4.01G)
*4.01H (g) Copy of Supplemental Trust Indenture, dated March 1, 1982, being a supplemental
instrument to Exhibit 4.01A hereto. (4.01H)
*4.01I (h) Copy of Supplemental Trust Indenture, dated June 1, 1986, being a supplemental
instrument to Exhibit 4.01A hereto. (4.01I)
*4.01J (i) Copy of Supplemental Trust Indenture, dated March 1, 1988, being a supplemental
instrument to Exhibit 4.01A hereto. (4.01J)
*4.01K (j) Copy of Supplemental and Restated Trust Indenture, dated March 1, 1991, being a
supplemental instrument to Exhibit 4.01A hereto. (4.01K)
4.01L Copy of Supplemental Trust Indenture, dated April 1, 1991, being a supplemental
instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1991, and
incorporated herein by reference.
4.01M Copy of Supplemental Trust Indenture, dated March 1, 1993, being a supplemental
instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01A to the Company's Current
Report on Form 8-K (File No. 10-3140) dated March 5, 1993, and incorporated herein
by reference.
4.01N Copy of Supplemental Trust Indenture, dated October 1, 1993, being a supplemental
instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01A to the Company's Current
Report on Form 8-K (File No. 10-3140) dated September 21, 1993, and incorporated
herein by reference.
4.01O Form of Supplemental Trust Indenture, for each series of New Bonds, being a DT
supplemental instrument to Exhibit 4.01A hereto....................................
5.01 Opinion of John P. Moore, Jr., Esq., as to legality of the New Bonds................ DT
12.01 Computation of ratio of earnings to fixed charges................................... DT
12.02 Computation of pro forma ratios of earnings to fixed charges........................ DT
23.01 Consent of Independent Public Accountants -- Price Waterhouse LLP, Minneapolis, DT
MN.................................................................................
23.02 Independent Auditors' Consent -- Deloitte & Touche LLP, Minneapolis, MN............. DT
23.03 Consent of Independent Accountants -- Price Waterhouse LLP, Milwaukee, WI........... DT
23.04 Consent of Legal Counsel............................................................ DT
24.01 Powers of Attorney.................................................................. DT
25.01 Form T-1 Statement of Eligibility of Firstar Trust Company to act as Trustee under DT
the Indenture that will secure the New Bonds.......................................
</TABLE>
DT -- Filed electronically with this direct transmission
<PAGE>
FORM OF MAY 3, 1996
NORTHERN STATES POWER COMPANY
(A WISCONSIN CORPORATION)
FIRST MORTGAGE BONDS
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Northern States Power Company, a Wisconsin corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters") for whom you are acting as representatives (the
"Representatives"), its First Mortgage Bonds of the designation, with the terms
and in the aggregate principal amount specified in Schedule I hereto (the
"Bonds") to be issued under its Trust Indenture, dated as of April 1, 1947, from
the Company to Firstar Trust Company (formerly known as First Wisconsin Trust
Company), as trustee (the "Trustee"), as heretofore supplemented and amended by
supplemental trust indentures, including the Supplemental and Restated Trust
Indenture dated March 1, 1991, and as to be further supplemented and amended by
a supplemental trust indenture relating to the Bonds (such Trust Indenture as so
supplemented and amended and as to be so supplemented and amended being
hereinafter referred to as the "Indenture"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives," as used herein, shall each
be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. 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") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form, including a prospectus, for the registration under
the Act of the Bonds, which registration statement has become effective.
Such registration statement and prospectus may have been amended or
supplemented from time to time prior to the date of this Agreement (which
date is set forth in Schedule I hereto). Any such amendment or supplement
was filed with the Commission and any such amendment has become effective.
The Company will file with the Commission a prospectus supplement (the
"Prospectus Supplement") relating to the Bonds pursuant to Rule 424 and/or
Rule 434 under the Act. Copies of such registration statement and
prospectus, any such amendment or supplement and all documents incorporated
by reference therein which were filed with the Commission on or prior to the
date of this Agreement have been delivered to you and copies of the
Prospectus Supplement will be delivered to you promptly after it is filed
with the Commission. Such registration statement as amended prior to the
date of this Agreement, and such prospectus, as amended and supplemented
prior to the date of this Agreement and as supplemented by the Prospectus
Supplement, are hereinafter called the "Registration Statement" and the
"Prospectus", respectively. Any reference herein to the Registration
Statement or the 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 and, if the Company
files any document pursuant to the Exchange Act after the date of this
Agreement and prior to the termination of the offering of the Bonds by the
Underwriters, which documents are deemed to be incorporated by
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reference into the Prospectus, the term "Prospectus" shall refer also to
said prospectus as supplemented by the documents so filed from and after the
time said documents are filed with the Commission. There are no contracts or
documents of the Company that are required to be filed as exhibits to the
Registration Statement or any documents incorporated by reference therein by
the Act, the Exchange Act or the rules and regulations thereunder which have
not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the
Registration Statement has been issued by the Commission and the
Registration Statement, at the date of this Agreement, complied in all
material respects with the requirements of the Act, the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the respective rules and
regulations thereunder and did not contain any untrue statement of a
material fact or omit any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and, at
the time the Prospectus Supplement is filed with the Commission and at the
Closing Date (as hereinafter defined), the Prospectus will comply in all
material respects with the Act and the rules and regulations thereunder and
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED that the Company makes no
representations or warranties as to (A) 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 (B) the information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the Registration
Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by
reference subsequent to the date of this Agreement will, when they are filed
with the Commission, conform in all material respects to the requirements of
the Exchange Act, and the rules and regulations of the Commission
thereunder; and none of such documents include or will include any untrue
statement of a material fact or omit or will omit to state any material fact
required to be stated therein or necessary to make the statements therein in
the light of the circumstances under which they were made not misleading.
(d) Deloitte & Touche LLP and Price Waterhouse LLP, which audited
certain of the financial statements incorporated by reference in the
Registration Statement, are each independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company filed as a part of or
incorporated by reference in the Registration Statement or Prospectus fairly
present the financial position of the Company as of the dates indicated and
the results of its operations and changes in financial position for the
periods specified, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as disclosed in the Prospectus Supplement. The
unaudited pro forma financial information incorporated by reference in the
Registration Statement and the Prospectus complies in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X
and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of such information.
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Wisconsin with
due corporate authority to carry on the business in which it is engaged and
to own and operate the properties used by it in such business, as described
in the Prospectus; the Company is qualified to do business as a foreign
corporation and is in good standing under the laws of the State of Michigan;
and the Company is not required
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by the nature of its business to be licensed or qualified as a foreign
corporation in any other state or jurisdiction; and, except as set forth in
the Prospectus Supplement, the Company has all material licenses and
approvals required at the date hereof to conduct its business.
(g) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus (except for subsequent issuance, if any,
pursuant to reservations or agreements referred to therein); the shares of
issued and outstanding capital stock of the Company have been duly and
validly issued, are fully paid and non-assessable and are owned by Northern
States Power Company, a Minnesota corporation.
(h) The Company has not sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus Supplement; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus Supplement, the Company has not incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, which are material to
the Company, and there has not been any material change in the capital stock
or long-term debt of the Company or any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company, otherwise than as set forth or
contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the
Indenture, the issuance and delivery of the Bonds, the consummation of the
transactions herein contemplated, the fulfillment of the terms hereof, nor
compliance with the terms and provisions of this Agreement, the Bonds and
the Indenture will conflict with, or result in the breach of, any of the
terms, provisions or conditions of the Restated Articles of Incorporation,
as amended, or By-laws of the Company, or of any contract, agreement or
instrument to which the Company is a party or in which the Company has a
beneficial interest or by which the Company is bound or of any order, rule
or regulation applicable to the Company of any court or of any federal or
state regulatory body or administrative agency or other governmental body
having jurisdiction over the Company or over its properties.
(j) The Bonds have been duly authorized for issuance and sale pursuant
to this Agreement and, when executed and authenticated in accordance with
the Indenture and delivered and paid for as provided herein, will be duly
issued and will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by bankruptcy,
insolvency and other laws affecting enforcement of creditors' rights, and
will be entitled to the benefits of the Indenture which will be
substantially in the form heretofore delivered to you.
(k) The Indenture has been duly and validly authorized by the Company
and, when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Trustee, will
constitute a valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting enforcement of creditors'
rights.
(l) The Public Service Commission of Wisconsin has issued its order
authorizing the issuance and sale of the Bonds on terms consistent with this
Agreement. Each other consent, approval, authorization, order, registration
or qualification of or with any regulatory public body, state or federal,
that is, or will be at the Closing Date, necessary in connection with the
issuance and sale of the Bonds pursuant to this Agreement has been or will
be obtained, other than approvals that may be required under state
securities laws.
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(m) The Company has good and valid title to all real and fixed property
and leasehold rights described or enumerated in the Indenture (except such
properties as have been released from the lien thereof in accordance with
the terms thereof), subject only to Permitted Encumbrances (as defined in
the Indenture).
(n) Other than as set forth or contemplated in the Prospectus, there are
no legal or governmental proceedings pending to which the Company is a party
or of which any property of the Company is the subject which, if determined
adversely to the Company, would individually or in the aggregate have a
material adverse effect on the financial position, stockholders' equity or
results of operations of the Company; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(o) The Company has all necessary power under statutory provisions or
permits to use its operating electric and gas properties.
(p) The Company has no "significant subsidiary", within the meaning of
Rule 1.02(v) of Regulation S-X under the Act.
(q) The Company is not an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended.
(r) Except as set forth in the Prospectus Supplement, the Company (A) is
in compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) has received all permits, licenses
or other approvals required of it under applicable Environmental Laws to
conduct its business and (C) is in compliance with all terms and conditions
of any such permits, licenses or approvals, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company.
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 the Representatives and each other Underwriter, and the Representatives
and each other Underwriter agree, severally and not jointly, to purchase from
the Company, at the purchase price set forth in Schedule I hereto, the
respective principal amounts of the Bonds set forth opposite their respective
names in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of an payment for the Bonds shall be
made at the place, date and time specified in Schedule I hereto (or such other
place, date and time not later than eight full business days thereafter as the
Representatives and the Company shall designate), which date and time may be
postponed by agreement between the Representatives and the Company (such date
and time being herein called the "Closing Date"). Delivery of the Bonds shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Bonds will be delivered in definitive registered
form except that, if for any reason the Company is unable to deliver the Bonds
in definitive form, the Company reserves the right, as provided in the
Indenture, to make delivery in temporary form. Any Bonds delivered in temporary
form will be exchangeable without charge for Bonds in definitive form. The Bonds
will be registered in the names of the Underwriters and in the principal amounts
set forth in Schedule II hereto except that if the Company receives a written
request from the Representatives prior to noon on the third business day
preceding the Closing Date giving the names in which the Bonds are to be
registered and the principal amounts thereof (which
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shall in each case be a multiple of $1,000) the Company will deliver the Bonds
so registered. The Bonds will be made available to the Representatives for
checking in New York, New York, not later than 2:00 p.m., New York time, on the
business day preceding the Closing Date.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) With the consent of the Representatives, the Company will cause the
Prospectus Supplement to be filed pursuant to Rule 424(b) and/or Rule 434
under the Act and will notify the Representatives promptly of such filing.
During the period for which a prospectus relating to the Bonds is required
to be delivered under the Act, the Company will promptly advise the
Representatives (i) when any amendment to the Registration Statement shall
have become effective, (ii) when any subsequent supplement to the Prospectus
(including documents deemed to be incorporated by reference into the
Prospectus) has been filed, (iii) of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceedings
for that purpose. The Company will not file any amendment of the
Registration Statement or supplement to the Prospectus (including documents
deemed to be incorporated by reference into the Prospectus) unless the
Company has furnished to the Representatives a copy for their review prior
to filing and will not file any such proposed amendment or supplement to
which the Representatives reasonably object. 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 Bonds is required
to be delivered under the Act, any event occurs as a result of which the
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 the light of the circumstances under which
they were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules and regulations of the Commission thereunder,
the Company promptly, subject to paragraph (a) of this Section 4, will
prepare and file an amendment or supplement to the Prospectus with the
Commission or will make a filing with the Commission pursuant to Section 13
or 14 of the Exchange Act, which will correct such statement or omission or
will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not
be audited) of the Company, for a twelve-month period beginning after the
date of the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule
434 under the Act, as soon as is reasonably practicable after the end of
such period, but in any event no later than eighteen months after the
"effective date of the Registration Statement" (as defined Rule 158(c) under
the Act), which will satisfy the provision of Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including at the
option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Form T-1 of the Trustee and all powers of attorney,
consents and exhibits filed therewith (other than exhibits incorporated by
reference), and will deliver to the Representatives conformed copies of the
Registration Statement, the Prospectus (including all documents incorporated
by reference therein) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, all amendments of and
supplements to such documents, in each case as soon as available and in such
quantities as the Representatives may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such action as may be required to qualify the Bonds for sale under
the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the
distribution of the Bonds; PROVIDED that the Company shall not be required
to qualify to do
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business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject.
(f) So long as the Bonds are outstanding, the Company will furnish (or
cause to be furnished) to each of the Representatives, upon request, copies
of (i) all reports to stockholders of the Company and (ii) all reports and
financial statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this Agreement and
continuing to the Closing Date, the Company will not offer, sell, or
otherwise dispose of any first mortgage bonds of the Company (except under
prior contractual commitments which have been disclosed to the
Representatives), without the prior written consent of the Representatives,
which consent shall not be unreasonably withheld.
5. EXPENSES. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Bonds to the
Underwriters, all fees and expenses of the Company's counsel and accountants,
all costs and expenses incident to the preparing, printing and filing of the
Registration Statement (including all exhibits thereto), the Prospectus
(including all documents incorporated by reference therein) and any amendments
thereof or supplements thereto, all costs and expenses (including fees and
expenses of counsel) incurred in connection with "blue sky" qualifications, the
determination of the legality of the Bonds for investment by institutional
investors and the rating of the Bonds, and all costs and expenses of the
printing and distribution of all documents in connection with this underwriting.
Except as provided in this Section 5 and Section 8 hereto, the Underwriters will
pay all their own costs and expenses, including the fees of their counsel and
any advertising expenses in connection with any offer they may make.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Bonds shall be subject, in the discretion of
the Representatives, to the accuracy of the representatives and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of the statements of Company officers made in any
certificates given pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Supplement relating to the Bonds shall have been
filed with the Commission pursuant to Rule 424(b) and/or Rule 434 within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission, and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction.
(b) The Representatives shall be furnished with opinions, dated the
Closing Date, of John P. Moore, Jr., General Counsel and Secretary of the
Company, substantially in the form included as Exhibit A.
(c) The Representatives shall have received from Gardner, Carton &
Douglas, Chicago, Illinois, counsel for the Underwriters, such opinion or
opinions dated the Closing Date with respect to the incorporation of the
Company, this Agreement, the validity of the Indenture, the Bonds, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
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(d) The Company shall have furnished to the Underwriters the opinion of
Loomis, Ewert, Ederer, Parsley, Davis & Gotting, special Michigan counsel
for the Company, dated the Closing Date, to the effect that:
(i) the Company is duly authorized as a foreign corporation under the
laws of the State of Michigan and has corporate power, right and
authority to do business in the State of Michigan in the manner as set
forth in the Prospectus to the extent it is authorized to transact such
business in the State of Wisconsin, and to own property in the State of
Michigan in the manner set forth in the Prospectus;
(ii) the Indenture is in proper form, conforming to the laws of the
State of Michigan, to give and create the lien which it purports to
create as to the property therein described and located in the State of
Michigan assuming that the Company holds marketable record title to such
property, except that the lien of the Indenture may not be effective as
to a bona fide purchaser (including a mortgagee) for value of any
after-acquired real property from the Company, unless a supplemental
indenture to the Trustee specifically describing such property has been
duly recorded prior to such purchase or the effective date of recording
of such other lien; and the Indenture is duly and properly recorded or
filed in all places in Michigan necessary to effectuate the lien of the
Indenture as to said property;
(iii) the Company has all necessary power under Michigan statutory
provisions and has all necessary franchises to use its operating electric
and gas properties in Michigan, except that no determination has been
made whether the Company or its Michigan predecessor has secured permits
and approvals, if any, required by the Wetlands Protection Act, 1979 PA
302, and except that the Company does not have electric franchises in the
cities of Ironwood, Bessemer and Wakefield, County of Gogebic, State of
Michigan. However, counsel for the Company, Aberg, Bell, Blake & Metzner,
rendered an opinion on April 19, 1968, that municipal franchises were not
required for the cities of Ironwood and Bessemer; and
(iv) No approval, authorization, consent, certificate or order of any
Michigan commission or regulatory authority is required in connection
with the issuance and sale of the Bonds by the Company to the
Underwriters as provided in this Agreement except as may be required
under state securities laws.
(e) The Company shall have furnished to the Representatives a
certificate of the President or any Vice President of the Company, dated the
Closing Date, as to the matters set forth in paragraph (a) and (i) of this
Section 6 and to the further effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representatives and warranties of the Company in this
Agreement are true and correct 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, and
(ii) there has been no material adverse change in the condition of
the Company, financial or otherwise, or in the earnings, affairs or
business prospects of the Company, whether or not arising in the ordinary
course of business, from that set forth or contemplated by the
Registration Statement or Prospectus Supplement.
(f) The Representatives shall have received letters from the Company's
independent public accountants (dated the date of this Agreement and Closing
Date, respectively, and in form and substance satisfactory to the
Representatives) advising that (i) they are independent public accountants
as required by the Act and published rules and regulations of the Commission
thereunder, (ii) in their opinion, the financial statements and financial
statement schedules incorporated by reference in the Registration Statement
and covered by their opinion filed with the Commission under Section 13 of
the Exchange Act comply as to form in all material respects
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with the applicable accounting requirements of the Exchange Act and the
published rules and regulations thereunder, (iii) they have performed
limited procedures, not constituting an audit, including a reading of the
latest available interim financial statements of the Company, a reading of
the minutes of meetings of the Board of Directors, committees thereof, and
of the Shareholders, of the Company since the date of the most recent
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company responsible for financial
accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe that:
(a) any material modifications should be made to any unaudited financial
statements of the Company included or incorporated by reference in the
Registration Statement or Prospectus for them to be in conformity with
generally accepted accounting principles or any unaudited financial
statements of the Company included or incorporated by reference in the
Registration Statement or Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the rules and regulations of the Commission applicable to
Form 10-Q; (b) with respect to the period subsequent to the date of the most
recent financial statements included or incorporated by reference in the
Prospectus and except as set forth in or contemplated by the Registration
Statement or Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the letter, in the capital
stock of the Company, increases in long-term debt or decreases in
stockholders' equity or net current assets of the Company as compared with
the amounts shown on the most recent consolidated balance sheet included or
incorporated in the Prospectus, or for the period from the date of the most
recent financial statements included or incorporated by reference in the
Prospectus to such specified date there were any decreases, as compared with
the corresponding period in the preceding year, in operating revenues,
operating income, or net income, 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 the Representatives; (iv)
they have carried out specified procedures performed for the purpose of
comparing certain specified financial information and percentages (which is
limited to financial information derived from general accounting records of
the Company) included or incorporated by reference in the Registration
Statement and Prospectus with indicated amounts in the financial statements
or accounting records of the Company and (excluding any questions of legal
interpretation) have found such information and percentages to be in
agreement with the relevant accounting and financial information of the
Company referred to in such letter in the description of the procedures
performed by them; and (v) on the basis of a reading of the unaudited pro
forma financial information incorporated by reference in the Registration
Statement and the Prospectus, carrying out certain specified procedures that
would not necessarily reveal matters of significance with respect to the
comments set forth in this paragraph (v), inquiries of certain officials of
the Company who have responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the unaudited pro forma financial
information, nothing came to their attention that caused them to believe
that the unaudited pro forma financial information does not comply in form
in all material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
information.
(g) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been
any change or decrease specified in the letter or letters referred to in
paragraph (f) of this Section 6 which makes it impractical or inadvisable in
the judgment of the Representatives to proceed with the public offering or
the delivery of the Bonds on the terms and in the manner contemplated by the
Prospectus.
(h) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change
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that does not indicate the direction of the possible change, in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g) (2) under the Act.
(i) (i) The Company shall not have sustained since the date of the
latest audited financial statements included or incorporated by reference in
the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus Supplement,
and (ii) since the date of this Agreement, the Company shall not have
incurred any liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business, which are
material to the Company, and there shall not have been any change in the
capital stock or long-term debt of the Company or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company otherwise than as set forth or contemplated in the
Prospectus Supplement, the effect of which, in any such case described in
clause (i) or (ii) is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Bonds on the terms and in the manner
contemplated by the Prospectus.
(j) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact which in the opinion of
counsel for the Underwriters is material or omits to state a fact which in
the opinion of counsel for the Underwriters is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(k) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they
may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or facsimile transmission confirmed in writing.
7. CONDITIONS OF COMPANY'S OBLIGATIONS. The obligations of the Company to
sell and deliver the Bonds are subject to the following conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge
of the Company or the Representatives, threatened.
(b) The orders of the Public Service Commission of Wisconsin and the
Michigan Public Service Commission referred to in paragraph (l) of Section 1
shall be in full force and effect.
If any of the conditions specified in this Section 7 shall not have been
fulfilled, this Agreement and all obligations of the Company hereunder may be
cancelled on or at any time prior to the Closing Date by the Company. Notice of
such cancellation shall be given to the Underwriters in writing or by telephone
or facsimile transmission confirmed in writing.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Bonds
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied 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 any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Bonds.
9
<PAGE>
9. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless
each Underwriter and each person 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 Bonds
as originally filed or in any amendment 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 Bonds as originally filed
or in any amendment thereof, or in the 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 investing or defending any such loss, claim, damage,
liability or action; PROVIDED that the Company will not be liability 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 any
Underwriter through the Representatives specifically for use therein and
PROVIDED FURTHER that such indemnity with respect to a prospectus included in
the registration statement or any amendment thereto prior to the supplementing
thereof with the Prospectus Supplement shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) form whom the person
asserting any such loss, claim, damage or liability purchased the Bonds which
are the subject thereof if such person was not sent or given a copy of the
Prospectus (but without the documents incorporated by reference therein) at or
prior to the confirmation of the sale of such Bonds 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 such prospectus was corrected in the Prospectus
in a timely manner and in sufficient quantities to permit such delivery by the
Underwriters. 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 has signed the
Registration Statement and each person, if any, 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 the Underwriters but only with reference
to written information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the documents
referred to in the foregoing indemnity, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with the investigating or defending any such loss, claim, damage,
liability or action. 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 9 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 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. 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
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 and/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 assume such legal defenses and to otherwise
10
<PAGE>
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 to to assume the defense of such action and approval by
the indemnifying party of counsel, the indemnifying party will not be liable to
such indemnifying party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnifying 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 and one local counsel, approved by the Representatives in the
case of subparagraph (a), representing the indemnifying parties under paragraphs
(a) or (b), as the case may be, who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnifying party to represent the indemnifying 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 indemnifying 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) If the indemnification provided for in the Section 9 is unavailable to
or insufficient to hold harmless an indemnified party under paragraph (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand the
offering of the Bonds. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under paragraph (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus Supplement. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. the Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this paragraph (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this paragraph (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this paragraph (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Bonds underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this paragraph
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
11
<PAGE>
(e) The obligations of the Company under this Section 9 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
10. DEFAULT BY AN UNDERWRITER. (a) If any Underwriter shall default in its
obligation to purchase the Bonds which it has agreed to purchase hereunder (in
this Section called "Unpurchased Bonds"), the Representatives may in their
discretion arrange for themselves or any party or other parties to purchase such
Unpurchased Bonds on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Unpurchased Bonds, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Unpurchased
bonds on such terms. If the event that, within the respective prescribed period,
the Representatives notify the Company that they have so arranged for the
purchase of such Unpurchased Bonds, the Representatives or the Company shall
have the right to postpone the Closing Date for such Unpurchased Bonds for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Unpurchased Bonds.
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in paragraph (a) above, the
aggregate principal amount of such Unpurchased Bonds which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of the Bonds,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Bonds which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Bonds which
such Underwriter agreed to purchase hereunder) of the Unpurchased Bonds of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made, but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Unpurchased Bond of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in paragraph (a) above, the
aggregate principal amount of Unpurchased Bonds which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Bonds, as referred
to in paragraph (b) above, of if the company shall not exercise the right
described in paragraph (b) above to require non-defaulting Underwriters to
purchase Unpurchased Bonds of a defaulting Underwriter or Underwriters, then
this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution agreements in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
11. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for all Bonds, if prior to such time (i) 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) if
a banking moratorium shall have been declared either by federal, Wisconsin or
New York State authorities, (iii) if trading in any securities of the Company
shall have been suspended or halted, or (iv) if
12
<PAGE>
there shall have occurred any outbreak or exclamation of hostilities involving
the United States or the declaration by the United States of a war or national
emergency or any other calamity or crisis the effect of which on the financial
markets in the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Bonds on the terms and in the manner contemplated in
the Prospectus.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
agreements, representatives warranties, indemnities and other statements of the
Company of its officers and of the Underwriters set forth in or made pursuant to
the 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
their respective officers, directors or controlling persons within the meaning
of the Act, and will survive delivery of and payment for the Bonds. The
provisions of Sections 5, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. NOTICES. All communications hereunder will be in writing and, if sent
to the Representatives, will be mailed, delivered or transmitted and confirmed
to them at their address set forth for that purpose in Schedule I hereto or, if
sent to the Company, will be mailed, delivered or transmitted and confirmed to
it at 100 North Barstow Street, Eau Claire, Wisconsin 54701, attention
Secretary.
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 9 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 Wisconsin.
16. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which, taken together, shall constitute a single agreement among the parties to
such counterparts.
17. REPRESENTATION OF THE UNDERWRITERS. The Representatives represent and
warrant to the Company that they are authorized to act as the representatives of
the Underwriters in connection with this financing and that the Representatives'
execution and delivery of this Agreement and any action under this Agreement
taken by such Representatives will be binding upon all Underwriters.
18. OTHER. Time shall be of the essence for all purposes of this
Agreement. As used herein, "business day" shall mean any day when the
Commission's's office in Washington D.C. is open for business.
13
<PAGE>
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 among the Company
and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
By ___________________________________
[Title]
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[Name of Representative(s)]
By ___________________________________
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS, IF ANY, NAMED IN
SCHEDULE II TO THE FOREGOING
AGREEMENT.
14
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 33-
Representatives and Addresses:
Bonds:
Designation: First Mortgage Bonds, Series due ,
%
Principal Amount:$
Supplemental Indenture dated as of
Date of Maturity:
Interest Rate: % per annum, payable and of each year,
commencing
Purchase Price: % of the principal amount thereof, plus accrued
interest, if any, from to the date of
payment and delivery.
Public Offering Price: % of the principal amount thereof, plus
accrued interest, if any, from to
the date of payment and delivery.
Payment to be made in federal (same day) funds. ____ Yes ____ No
Closing Date and Location:
Office for Delivery of Bonds:
Office for Payment of Bonds:
Office for Checking of Bonds:
15
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
NAME OF UNDERWRITER BONDS
--------------
<S> <C>
--------------
Total................................................................................. $
--------------
--------------
</TABLE>
16
<PAGE>
EXHIBIT A
FORM OF OPINION OF JOHN P. MOORE, JR.
RE: $ ,000,000 PRINCIPAL AMOUNT OF FIRST MORTGAGE BONDS, SERIES DUE
, %
OF NORTHERN STATES POWER COMPANY, A WISCONSIN CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the proceedings
taken by Northern States Power Company, a Wisconsin corporation, herein called
the "Company," with respect to the issue and sale by the Company of $ ,000,000
principal amount of First Mortgage Bonds, Series due , % herein
called the "Bonds." In connection therewith, I have participated in the
preparation of the proceedings for the issuance and sale of the Bonds, including
the Underwriting Agreement dated (the "Underwriting Agreement")
between you and the Company relating to your purchase of the Bonds, and have
either participated in the preparation of or examined the Trust Indenture dated
April 1, 1947, the 12 Supplemental Trust Indentures thereto, the Supplemental
and Restated Trust Indenture dated March 1, 1991, and the Supplemental Trust
Indenture dated as of , creating the Bonds, all from the Company
to Firstar Trust Company (formerly known as First Wisconsin Trust Company), as
Trustee (which Trust Indenture and Supplemental Trust Indentures are herein
collectively called the "Indenture"). I have also participated in the
preparation of or examined the registration statement and the accompanying
prospectuses and any supplements thereto, as filed under the Securities Act of
1933, as amended (herein called the "Act"), with respect to the Bonds. The terms
"Registration Statement" and "Prospectus" as used herein shall have the meanings
ascribed to such terms by the Underwriting Agreement. My examination has
extended to all statutes, records, instruments, and documents which I have
deemed necessary to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under the laws of the
State of Wisconsin; has corporate power, right, and authority to do business
and to own property in the State of Wisconsin in the manner and as set forth
in the Prospectus; has no "significant subsidiaries" within the meaning of
Rule 1.02(v) of Regulation S-X under the Act; and has corporate power,
right, and authority to make the Indenture and issue and sell the Bonds;
2. The authorized capital stock of the Company is as set forth in the
Prospectus and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-assessable
and are owned by Northern States Power Company, a Minnesota corporation;
3. The Underwriting Agreement has been duly authorized, executed, and
delivered by the Company and is a valid and binding obligation of the
Company, except to the extent that the provisions for indemnities in the
Underwriting Agreement may be held to be unenforceable as against public
policy.
4. The Indenture has been duly authorized by appropriate corporate
proceedings on the part of the Company, has been duly executed and delivered
and constitutes a legal, valid, and binding instrument enforceable in
accordance with its terms, except as the provisions of the United States
Bankruptcy Code may affect the validity of the lien thereof with respect to
proceeds, products, rents, issues, or profits realized, and additional
property acquired, after the commencement of a case under said Code, and
except as enforcement of the provisions of the Indenture may be limited by
the laws of the States of Michigan and Wisconsin (where property covered
thereby is located) affecting the remedies for the enforcement of the
security provided in
1
<PAGE>
the Indenture (which states' laws do not in my opinion make such remedies
inadequate for realization of the benefits of such security) or except as
the same may be limited by bankruptcy or insolvency laws or other similar
laws; and the Indenture constitutes a valid mortgage effective to create a
lien for the security of the Bonds upon the property now owned by the
Company therein specifically described as subject to the lien thereof,
except as otherwise provided therein with respect to specific property or
classes of property;
5. The Indenture is in proper form, conforming to the laws of the State
of Wisconsin, to give and create the lien which it purports to create and
has been and now is duly and properly recorded or filed in all places in the
State of Wisconsin necessary to effectuate the lien of the Indenture.
6. The Company has good and valid title to all real and fixed property
and leasehold rights described or enumerated in the Indenture (except such
properties as have been released from the lien thereof in accordance with
the terms thereof), subject only to: (A) taxes and assessments not yet
delinquent; (B) the lien of the Indenture; (C) as to parts of the Company's
property, certain easements, conditions, restrictions, leases, and similar
encumbrances which do not affect the Company's use of such property in the
usual course of its business, certain minor defects in titles which are not
material, defects in titles to certain properties which are not essential to
the Company's business, and mechanics' lien claims being contested or not of
record or for the satisfaction or discharge of which adequate provision has
been made by the Company pursuant to the Indenture. This opinion does not
cover titles to easements for water flowage purposes or rights of way for
electric and or gas transmission and distribution facilities, but the
Company has the power of eminent domain in the states in which it operates
and such power may be utilized by the Company to cure defects in title to
its real property;
7. The Bonds are secured by and entitled to the benefits of the
Indenture equally and ratably, except as to sinking fund provisions, with
all other bonds duly issued and outstanding under the Indenture by a valid
and direct first mortgage lien of the Indenture on all of the real and fixed
properties, leasehold rights, franchises, and permits now owned by the
Company, subject only to the exceptions set forth in Paragraph 6 above;
8. The Bonds also are secured equally and ratably, except as to sinking
fund provisions, with all other bonds duly issued and outstanding under the
Indenture by a valid and direct first mortgage lien (subject to Permitted
Encumbrances as defined in the Indenture) on all real and fixed property
hereafter acquired by the Company in conformity with the terms of the
Indenture, except as the United States Bankruptcy Code may affect the
validity of the lien of such Indenture on property acquired after the
commencement of a case under such Code, except as to the prior lien of the
Trustee under the Indenture in certain events specified therein, and except
as otherwise provided in the Indenture in the case of consolidation, merger,
or transfer of all the mortgaged and pledged property as an entirety;
9. The issuance of the Bonds in accordance with the terms of the
Indenture and the sale and delivery thereof pursuant to the provisions of
the Underwriting Agreement has been duly authorized by the Company; the
statements made under the captions "Description of New Bonds" and
"Supplemental Description of Offered Bonds" in the Prospectus, insofar as
they purport to summarize provisions of documents specifically referred to
therein, fairly present the information called for with respect thereto by
Form S-3; the Bonds are in due legal form, constitute legal, valid, and
binding obligations of the Company, and (subject to the qualification
expressed in Paragraph 4 above with respect to the validity and
enforceability of certain of the provisions of the Indenture) are
enforceable in accordance with their terms;
10. The consummation of the transactions contemplated in the
Underwriting Agreement and the fulfillment of the terms thereof and
compliance by the Company with all the terms and provisions of the Indenture
will not result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument known to me to which the Company is a party or by
which it is bound, or the Restated
2
<PAGE>
Articles of Incorporation, as amended, or By-laws of the Company or, to the
best of my knowledge, any order, rule or regulation applicable to the
Company of any court or of any federal or state regulatory body or
administrative agency or other government body having jurisdiction over the
Company or its property;
11. The Registration Statement has become effective under the Act. The
Prospectus Supplement (as defined in the Underwriting Agreement) has been
filed pursuant to Rule 424(b) under the Act and no proceedings for a stop
order have been instituted or to my knowledge are pending or threatened
under Section 8(d) of the Act; the Public Service Commission of Wisconsin
has issued its order authorizing the issuance and sale of the Bonds; the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended; and no further approval of, authorization, consent certificate or
order of any governmental body, federal, state (other than the approval of
the Michigan Public Service Commission) or other, is required in connection
with the issuance and sale of the Bonds by the Company to you as provided in
the Underwriting Agreement, except as may be required by "blue sky" or state
securities laws;
12. At the time the Registration Statement became effective and at the
date of the Underwriting Agreement, the Registration Statement (other than
the financial statements and supporting schedules included therein, as to
which no opinion is rendered) complied as to form in all material respects
with the requirements of the Act, the Trust Indenture Act of 1939, as
amended, and the rules and regulations thereunder;
13. I do not know of any legal or governmental proceedings required to
be described in the Prospectus which are not described as required, nor of
any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
14. The Company has all necessary power under statutory provisions and
permits to use its operating electric and gas properties; and
15. All statements contained in the Registration Statement and
Prospectus purporting to set forth my opinion or to be based up on my
opinion correctly set forth my opinion on said respective matters.
In the course of my participation in the preparation of the Registration
Statement and prospectus I made investigations as to the accuracy of certain of
the statements of fact contained therein, I discussed other matters with
officers, employees and representatives of the Company, and I examined various
corporate records and data. While I do not pass up on and do not assume
responsibility for and shall not be deemed to have independently verified the
accuracy, completeness or fairness of the Registration Statement or the
Prospectus (except as to matters set forth in Paragraphs 12 and 15 above),
nothing has come to my attention that would lead me to believe that the
Registration Statement at the time it became effective or at the date of the
Underwriting Agreement contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus at the date of
the Underwriting Agreement or as of the date hereof contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In giving my opinion under Paragraph 6 above, I have relied upon
examinations of abstracts of titles to properties of the Company, said abstracts
bearing various dates, and nothing has come to my attention which would lead me
to believe that anything has occurred since the dates of the abstracts
3
<PAGE>
which would adversely affect the titles shown on the abstracts. In giving
opinions as to titles to property of the Company, I also, in certain instances,
relied upon the opinion of other counsel employed or retained by the Company to
render opinions in respect thereto.
Respectfully submitted,
By ___________________________________
John P. Moore, Jr.
General Counsel
4
<PAGE>
EXHIBIT 4.01O
FORM OF
SUPPLEMENTAL TRUST INDENTURE
FROM
NORTHERN STATES POWER COMPANY
(A WISCONSIN CORPORATION)
TO
FIRSTAR TRUST COMPANY
(FORMERLY KNOWN AS FIRST WISCONSIN TRUST COMPANY)
TRUSTEE
--------------
DATED
-----------
SUPPLEMENTAL TO TRUST INDENTURE
DATED APRIL 1, 1947
AND
SUPPLEMENTAL AND RESTATED TRUST INDENTURE
DATED MARCH 1, 1991
<PAGE>
TABLE OF CONTENTS
--------------
<TABLE>
<CAPTION>
PAGE
<S> <C> <C> <C>
Parties................................................................................................................... 1
Recitals.................................................................................................................. 1
Form of Bond of Series due ................................................................................. 2
Form of Trustee's Certificate............................................................................................. 4
Further Recitals.......................................................................................................... 4
ARTICLE I.
SPECIFIC SUBJECTION OF ADDITIONAL PROPERTY TO THE
LIEN OF THE INDENTURE
Section 1.01-- Grant of certain property, including personal property to comply with the Uniform Commercial Code,
subject to Permitted Encumbrances contained in Indenture............................................ 5
ARTICLE II.
FORM AND EXECUTION OF BONDS OF SERIES DUE
Section 2.01-- Terms of Bonds...................................................................................... 6
Section 2.02-- Redemption of Bonds................................................................................. 6
Section 2.03-- Interchangeability of Bonds......................................................................... 7
Section 2.04-- Charges for exchange or transfer of Bonds........................................................... 7
Section 2.05-- Book-Entry System................................................................................... 7
ARTICLE III.
[Note: Provisions Relating to a Sinking Fund Will Be Omitted If a Sinking
Fund is Not Established For a Particular Series of Bonds]
SINKING FUND
Section 3.01-- (a) Sinking Fund established for bonds of Series due ....................................... 9
(b)
Bonds delivered to Trustee equivalent to cash under Section 3.01(a)................................. 9
(c)
Permanent additions to the extent available as basis for issuance of bonds, equivalent to cash under
Section 3.01(a)..................................................................................... 10
Section 3.02-- (a) Moneys to be applied to purchase or redemption of bonds of Series due ............... 10
(b)
Bonds to be selected by lot......................................................................... 10
(c)
Effect of deposit of moneys for redemption.......................................................... 10
(d)
Exchange of registered bonds for unredeemed balance of registered
bonds............................................................................................... 11
Section 3.03-- Bonds purchased or redeemed to be cancelled......................................................... 11
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
ARTICLE IV.
APPOINTMENT OF AUTHENTICATING AGENT
Section 4.01-- Appointment of agent or agents for Bonds of Series due
.................................................................................................... 11
Section 4.02-- (a) Qualifications of agents............................................................................ 11
(b)
Continuation of agent upon merger or consolidation.................................................. 11
(c)
Termination of successor agent...................................................................... 11
(d)
Compensation of agent............................................................................... 11
Section 4.03-- Form of alternate certificate of authentication..................................................... 12
Section 4.04-- Limit on location and number of agents.............................................................. 12
ARTICLE V.
FINANCING STATEMENT TO COMPLY WITH THE
UNIFORM COMMERCIAL CODE
Section 5.01-- Names and addresses of debtor and secured party..................................................... 12
Section 5.02-- Property subject to lien............................................................................ 12
Section 5.03-- Maturity dates and principal amounts of obligations secured......................................... 12
Section 5.04-- Financing Statement adopted for all First Mortgage Bonds listed in Section 5.03..................... 12
Section 5.05-- Recording data for the Indenture.................................................................... 13
Section 5.06-- Financing Statement covers additional series of First Mortgage Bonds................................ 13
ARTICLE VI.
MISCELLANEOUS
Section 6.01-- Recitals of fact, except as stated, are statements of the Company................................... 13
Section 6.02-- Supplemental Trust Indenture to be construed as a part of the Indenture............................. 13
Section 6.03-- (a) Trust Indenture Act to control...................................................................... 13
(b)
Severability of conditions contained in Supplemental Trust Indenture and Bonds...................... 13
Section 6.04-- Word "Indenture" as used herein includes in its meaning the 1947 Indenture, as amended and restated
by the Restated Indenture, and all indentures supplemental thereto.................................. 13
Section 6.05-- References to either party in Supplemental Trust Indenture include successors or assigns............ 14
Section 6.06-- (a) Provision for execution in counterparts............................................................. 14
(b)
Table of Contents and descriptive headings of Articles not to affect meaning........................ 14
Schedule A................................................................................................................ A-1
Mortgagor's Receipt for Copy.............................................................................................. A-2
</TABLE>
<PAGE>
SUPPLEMENTAL TRUST INDENTURE, made as of the day of , , by and
between NORTHERN STATES POWER COMPANY, a corporation duly organized and existing
under and by virtue of the laws of the State of Wisconsin, having its principal
office in the City of Eau Claire in said State (herein called the "Company"),
party of the first part, and Firstar Trust Company (formerly known as First
Wisconsin Trust Company), a corporation duly organized and existing under and by
virtue of the laws of the State of Wisconsin, having its principal office in the
City of Milwaukee in said State, as Trustee (herein called the "Trustee"), party
of the second part;
WITNESSETH:
WHEREAS, the Company heretofore has executed and delivered to the Trustee
its Trust Indenture made as of April 1, 1947 (herein referred to as the 1947
Indenture), whereby the Company granted, bargained, sold, warranted, released,
conveyed, assigned, transferred, mortgaged, pledged, set over, and confirmed to
the Trustee, and to its respective successors in trust, all property, real,
personal, and mixed then owned or thereafter acquired or to be acquired by the
Company (except as therein excepted from the lien thereof) and subject to the
rights reserved by the Company in and by the provisions of the 1947 Indenture,
to be held by said Trustee in trust in accordance with the provisions of the
1947 Indenture for the equal pro rata benefit and security of all and every of
the bonds issued and to be issued thereunder in accordance with the provisions
thereof; and
WHEREAS, the Indenture (as defined below) provides that bonds may be issued
thereunder in one or more series, each series to have such distinctive
designation as the Board of Directors of the Company may select for such series;
and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
the following Supplemental Trust Indentures which, in addition to conveying,
assigning, transferring, mortgaging, pledging, setting over, and confirming to
the Trustee, and its respective successors in said trust, additional property
acquired by it subsequent to the preparation of the next preceding Supplemental
Trust Indenture and adding to the covenants, conditions, and agreements of the
Indenture certain additional covenants, conditions, and agreements to be
observed by the Company, created the following series of First Mortgage Bonds:
<TABLE>
<CAPTION>
DATE OF SUPPLEMENTAL
TRUST INDENTURE DESIGNATION OF SERIES
- ---------------------- ------------------------------------------------
<S> <C>
March 1, 1949 Series due March 1, 1979 (retired)
June 1, 1957 Series due June 1, 1987 (retired)
August 1, 1964 Series due August 1, 1994 (redeemed)
December 1, 1969 Series due December 1, 1999 (redeemed)
September 1, 1973 Series due October 1, 2003 (redeemed)
February 1, 1982 Pollution Control Series A (redeemed)
March 1, 1982 Series due March 1, 2012 (redeemed)
June 1, 1986 Series due July 1, 2016 (redeemed)
March 1, 1988 Series due March 1, 2018 (redeemed)
April 1, 1991 Series due April 1, 2021
March 1, 1993 Series due March 1, 2023
October 1, 1993 Series due October 1, 2003; and
</TABLE>
WHEREAS, the 1947 Indenture and all of the foregoing Supplemental Trust
Indentures are referred to herein collectively as the "Original Indenture;" and
WHEREAS, the Company heretofore has executed and delivered to the Trustee a
Supplemental and Restated Trust Indenture, dated March 1, 1991 (the "Restated
Indenture"), which in addition to conveying, assigning, transferring,
mortgaging, pledging, setting over, and confirming to the Trustee, and its
respective successors in said trust, additional property acquired by it
subsequent to the preparation of the next preceding Supplemental Trust
Indenture, amended and restated the Original Indenture; and
WHEREAS, the Restated Indenture became effective and operative on October 1,
1993; and
<PAGE>
2
WHEREAS, the Original Indenture, the Restated Indenture and all trust
indentures supplemental thereto, are referred to herein collectively as the
"Indenture" and certain capitalized terms defined in Section 1.03 of the
Restated Indenture are used with the same meanings herein; and
WHEREAS, the Company is desirous of providing for the creation under the
Indenture of a new series of bonds designated "First Mortgage Bonds, Series due
," the bonds of said series to be issued as registered bonds
without coupons in denominations of a multiple of $1,000, and the bonds of said
series to be substantially in the following form:
(Form of Bonds of Series due )
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of the State of Wisconsin)
First Mortgage Bond
Series due
No. ______________ $ ______________
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation, to the issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]*
NORTHERN STATES POWER COMPANY, a corporation organized and existing under
and by virtue of the laws of the State of Wisconsin (hereinafter called the
Company), for value received, hereby promises to pay to
____________________________________ or registered assigns, at the office of
Firstar Trust Company, at Milwaukee, Wisconsin, the sum of ______________
Dollars in lawful money of the United States of America, on the day of
, , and to pay interest hereon from the date hereof at the rate of
per cent per annum, in like money, until the principal
hereof becomes due and payable; said interest being payable to the person
entitled to such interest at the office of Firstar Trust Company, in Milwaukee,
Wisconsin, on the day of and on the day of in each year;
provided that at the option of the Company payment of interest may be made by
wire transfer to the person entitled thereto if such person has provided proper
wire transfer instructions or by check mailed to the address of such person as
such address shall appear in the bond register maintained by the Trustee;
provided further that as long as there is no existing default in the payment of
interest and except for the payment of defaulted interest, the interest payable
on any or will be paid to the person in whose name this bond was
registered at the close of business on the record date (the prior to
such or the prior to such unless any such date is not
a business day, in which event it will be the next preceding business day).
["EXCEPT UNDER THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, THIS
GLOBAL BOND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY, ANOTHER NOMINEE OF THE DEPOSITORY,
A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR".]*
This bond is one of a duly authorized issue of bonds of the Company, known
as its First Mortgage Bonds, of the series and designation indicated on the face
hereof, which issue of bonds consists, or may consist, of several series of
varying denominations, dates, and tenor, all issued and to be issued under and
equally secured (except insofar as a sinking fund, or similar fund, established
in accordance with
*This legend is to be included if the bonds are issued as a Global bond in
book-entry form.
<PAGE>
3
the provisions of the Indenture may afford additional security for the bonds of
any specific series) by a Trust Indenture dated April 1, 1947 (the "1947
Indenture"), as supplemented by 12 supplemental trust indentures (collectively,
the "Supplemental Indentures"), a Supplemental and Restated Trust Indenture
dated March 1, 1991 (the "Restated Indenture") and a new supplemental trust
indenture dated , (the "New Supplemental Indenture"), all of which
instruments are herein collectively called the "Indenture", executed by the
Company to Firstar Trust Company (herein called the Trustee), as Trustee. The
Restated Indenture amends and restates the 1947 Indenture and certain of the
Supplemental Indentures and became effective and operative on October 1, 1993.
Certain capitalized terms defined in the Indenture are used with the same
meanings herein. Reference is made to the Indenture for a complete description
of its terms. Reference is hereby made to the Indenture for a description of the
property mortgaged and pledged, the nature and extent of the security, the
rights of the registered holders of the bonds as to such security, and the terms
and conditions upon which the bonds may be issued under the Indenture and are
secured. The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Indenture, upon the
happening of a Completed Default as provided in the Indenture.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, the rights and obligations of the Company and of the
registered holders of the bonds, and the terms and provisions of the Indenture
and of any instruments supplemental thereto may be modified or altered by
affirmative vote of the registered holders of at least 66 2/3% in principal
amount of the bonds then outstanding under the Indenture and any instruments
supplemental thereto (excluding bonds disqualified from voting by reason of the
interest of the Company or of certain related persons therein as provided in the
Indenture); provided that without the consent of all registered holders of all
bonds affected no such modification or alteration shall permit the extension of
the maturity of the principal of any bond or the reduction in the rate of
interest hereon or any other modification in the terms of payment of such
principal or interest.
The Company and the Trustee may deem and treat the person in whose name this
bond is registered as the absolute owner hereof for the purpose of receiving
payment of or on account of the principal hereof and interest hereon and for all
other purposes and shall not be affected by any notice to the contrary.
[At the option of the Company, and upon not less than 30 days' notice prior
to the date fixed for redemption, in the manner and with the effect provided in
the Indenture, any or all of the bonds of this Series due , may
be redeemed, other than for the Sinking Fund provided for bonds of this series,
by the Company on any date by the payment of principal, the accrued interest to
the date of redemption, and the applicable premium on the principal amount
specified in the tabulation below under the heading "Regular Redemption
Premium," provided that no bond of the Series due , shall be
redeemed (other than through said Sinking Fund) prior to , and
this bond is entitled to the benefits of and is subject to call for redemption
at par for the Sinking Fund on December 1 of each year beginning
, upon like notice and in the manner and with the effect provided
in the Indenture, by the payment of principal and accrued interest to the date
of redemption:
If Redeemed During Regular
the Twelve Month Period Redemption
Beginning Premium
- --------------------------------------------------------------------------------
(REDEMPTION PREMIUMS ARE TO BE INSERTED IN EACH BOND IN CONFORMITY WITH SECTION
2.02)
[This bond is not redeemable prior to maturity.]
This bond is transferable as prescribed in the Indenture by the registered
holder hereof in person, or by his duly authorized attorney, at the office of
the Trustee in Milwaukee, Wisconsin, or elsewhere if authorized by the Company,
upon surrender and cancellation of this bond, and thereupon a new bond
<PAGE>
4
or bonds of the same series and of a like aggregate principal amount will be
issued to the transferee in exchange therefor as provided in the Indenture, upon
payment of taxes or other governmental charges, if any, that may be imposed in
relation thereto.
Bonds of this series are interchangeable as to denominations in the manner
and upon the conditions prescribed in the Indenture.
No charge shall be made by the Company for any exchange or transfer of bonds
of the Series due , other than for taxes or other governmental
charges, if any, that may be imposed in relation thereto.
No recourse shall be had for the payment of principal of or interest on this
bond, or any part thereof, or of any claim based hereon or in respect hereof or
of the Indenture, against any incorporator, or any past, present, or future
stockholder, officer or director of the Company or of any predecessor or
successor corporation, either directly or through the Company, or through any
such predecessor or successor corporation, or through any receiver or a trustee
in bankruptcy, whether by virtue of any constitution, statute, or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released, as more fully provided in the Indenture.
This bond shall not be valid or become obligatory for any purpose unless and
until the certificate of authentication hereon shall have been signed by or on
behalf of Firstar Trust Company, as Trustee under the Indenture, or its
successor thereunder.
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this bond to be
signed in its name by its President or a Vice President or with the facsimile
signature of its President, and its corporate seal, or a facsimile thereof, to
be hereto affixed and attested by its Secretary or an Assistant Secretary or
with the facsimile signature of its Secretary.
<TABLE>
<S> <C> <C>
Dated: NORTHERN STATES POWER COMPANY
Attest: By
President
Secretary
</TABLE>
(Form of Trustee's Certificate)
This bond is one of the bonds of the Series designated therein, described in
the within-mentioned Indenture.
Firstar Trust Company, as Trustee.
By ___________________________________
Authorized Officer
and
WHEREAS, the Company is desirous of assigning, conveying, mortgaging,
pledging, transferring, setting over and confirming to the Trustee and to its
respective successors in trust, additional property acquired by it subsequent to
the date of the preparation of the Supplemental Trust Indenture dated October 1,
1993; and
WHEREAS, the Indenture provides in substance that the Company and the
Trustee may enter into indentures supplemental thereto for the purposes, among
others, of creating and setting forth the terms of any new series of bonds and
of assigning, conveying, mortgaging, pledging, transferring, setting over, and
confirming to the Trustee additional property of the Company, and for any other
purpose not inconsistent with the terms of the Indenture; and
<PAGE>
5
WHEREAS, the execution and delivery of this Supplemental Trust Indenture
have been duly authorized by a resolution adopted by the Executive Committee of
the Board of Directors of the Company; and
WHEREAS, the Trustee has duly determined to execute this Supplemental Trust
Indenture and to be bound, insofar as it may lawfully do so, by the provisions
hereof;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
Northern States Power Company, in consideration of the premises and of one
dollar ($1) to it duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby acknowledged, and
other good and valuable considerations, does hereby covenant and agree to and
with Firstar Trust Company, as Trustee, and its successors in the trust under
the Indenture for the benefit of the registered holders of the bonds, or any of
them, issued or to be issued, thereunder, as follows:
ARTICLE I.
SPECIFIC SUBJECTION OF ADDITIONAL PROPERTY TO
THE LIEN OF THE INDENTURE
SECTION 1.01. The Company in order to better secure the payment, both of the
principal and interest, of all bonds of the Company at any time outstanding
under the Indenture according to their tenor and effect and the performance of
and compliance with the covenants and conditions in the Indenture contained, has
granted, bargained, sold, warranted, released, conveyed, assigned, transferred,
mortgaged, pledged, set over, and confirmed and by these presents does grant,
bargain, sell, warrant, release, convey, assign, transfer, mortgage, pledge, set
over, and confirm unto Firstar Trust Company, as Trustee, and to its respective
successors in said trust forever, subject to the rights reserved by the Company
in and by the provisions of the Indenture, all of the property described and
mentioned or enumerated in a schedule hereto annexed and marked Schedule A,
reference to said schedule being hereby made with the same force and effect as
if the same were incorporated herein at length; together with all and singular
the tenements, hereditaments, and appurtenances belonging or in any wise
appertaining to the aforesaid property or any part thereof with the reversion
and reversions, remainder and remainders, tolls, rents and revenues, issues,
income, product, and profits thereof;
Also, in order to subject the personal property and chattels of the Company
to the Lien of the Indenture in conformity with the provisions of the Uniform
Commercial Code, all fossil, nuclear, hydro, and other electric generating
plants, including buildings and other structures, turbines, generators, boilers,
reactors, nuclear fuel, other boiler plant equipment, condensing equipment, and
all other generating equipment; substations; electric transmission and
distribution systems, including structures, poles, towers, fixtures, conduits,
insulators, wires, cables, transformers, services and meters; steam heating
mains and equipment; gas transmission and distribution systems, including
structures, storage facilities, mains, compressor stations, purifier stations,
pressure holders, governors, services and meters; office, shop, and other
general buildings and structures, furniture and equipment, apparatus and
equipment of all other kinds and descriptions; all municipal and other
franchises, all leaseholds, licenses, permits, privileges and patent rights,
parts or parcels of such real property; all as now owned or hereafter acquired
by the Company pursuant to the provisions of the Indenture; and
All the estate, right, title and interest and claim whatsoever, at law as
well as in equity, that the Company now has or may hereafter acquire in and to
the aforesaid property and franchises and every part and parcel thereof;
Excluding, however, (1) all shares of stock, bonds, notes, evidences of
indebtedness and other securities other than such as may be or are required to
be deposited from time to time with the Trustee in accordance with the
provisions of the Indenture; (2) cash on hand and in banks other than such as
may be or is required to be deposited from time to time with the Trustee in
accordance with the
<PAGE>
6
provisions of the Indenture; (3) contracts, claims, bills and accounts
receivable and choses in action other than such as may be or are required to be
assigned to the Trustee in accordance with the provisions of the Indenture; (4)
motor vehicles; (5) any stock of goods, wares and merchandise, equipment, and
supplies acquired for the purpose of sale or lease in the usual course of
business or for the purpose of consumption in the operation, construction or
repair of any of the properties of the Company; and (6) the properties described
in Schedule B annexed to the 1947 Indenture;
To have and to hold all said property, real, personal and mixed, mortgaged,
pledged or conveyed by the Company as aforesaid, or intended so to be, unto the
Trustee and its successors and assigns forever, subject, however, to Permitted
Encumbrances and to the further reservations, covenants, conditions, uses and
trusts set forth in the Indenture; in trust nevertheless for the same purposes
and upon the same conditions as are set forth in the Indenture.
ARTICLE II.
FORM AND EXECUTION OF BONDS OF SERIES DUE
SECTION 2.01. There is hereby created, for issuance under the Indenture, a
series of bonds designated Series due , each of which shall bear
the descriptive title "First Mortgage Bond, Series due " and the
form thereof shall contain suitable provisions with respect to the matters
specified in this Section. The bonds of said series shall be substantially of
the tenor and purport hereinbefore recited. The bonds of said series shall
mature , and shall be issued as registered bonds without coupons
in denominations of a multiple of $1,000. The bonds of said series shall bear
interest at the rate of % per annum payable semi-annually on and
of each year, and the principal shall be payable at the office of the
Trustee at Milwaukee, Wisconsin, in lawful money of the United States of
America, and the interest shall be payable in like money to the person entitled
to such interest at said office of the Trustee at Milwaukee, Wisconsin, provided
that at the option of the Company payment of interest may be made by wire
transfer to the person entitled thereto if such person has provided proper wire
transfer instructions or by check mailed to the address of such person as such
address shall appear in the bond register maintained by the Trustee. Bonds of
the Series due , shall be dated their date of authentication.
As long as there is no existing default in the payment of interest on the
bonds of the Series due , the person in whose name any bond of the
Series due , is registered at the close of business on any Regular
Record Date with respect to any interest payment date shall be entitled to
receive the interest payable on such interest payment date notwithstanding any
transfer or exchange of such bond of the Series due , subsequent
to the Regular Record Date and on or prior to such interest payment date.
Defaulted Interest shall be paid by the Company as provided in Section 2.03 of
the Indenture.
The term "Regular Record Date" as used herein with respect to any interest
payment date ( or ) shall mean the prior to such or
prior to such unless such or shall not be a
Business Day, in which event "Regular Record Date" shall mean the next preceding
Business Day. The term "Business Day" as used herein shall mean any day other
than a Saturday or a Sunday or a day on which the office of the Trustee in the
City of Milwaukee, Wisconsin, is closed pursuant to authorization of law.
SECTION 2.02. [The bonds of the Series due , shall be
redeemable, other than for the Sinking Fund for bonds of that series provided
for in Article III hereof, at the option of the Company as a whole or in part on
any date upon not less than 30 days' previous notice to be given in the manner
and with the effect provided in Section 10.02 of the Indenture at the principal
amount thereof, with accrued interest thereon to the date of redemption and at
the applicable premium on the principal amount specified in the tabulation below
under the heading "Regular Redemption Premium," provided that no bond of the
Series due , shall be redeemed (other than through said Sinking
Fund) prior to and the bonds of the Series due ,
shall be subject to call for redemption at par for the Sinking Fund on
of each year
<PAGE>
7
beginning , upon not less than 30 days' previous notice to be given in
the manner and with the effect provided in Article III hereof and in Section
10.02 of the Indenture and in Article III hereof) at the principal amount
thereof and accrued interest thereon to the date of redemption.
<TABLE>
<CAPTION>
IF REDEEMED IF REDEEMED
DURING THE DURING THE
TWELVE MONTH REGULAR TWELVE MONTH REGULAR
PERIOD REDEMPTION PERIOD REDEMPTION
BEGINNING PREMIUM BEGINNING PREMIUM
- --------------- --------------- --------------- ---------------
<S> <C> <C> <C>
</TABLE>
The redemption prices of the bonds of the Series due ,
need not be specified in any temporary bond of said series if an appropriate
reference be made in said temporary bond to the provision of this Section.] [The
bonds of the Series due , shall not be redeemable prior to
maturity and are not subject to any sinking fund.]
SECTION 2.03. The registered owner of any bond or bonds of the Series due
, at his option may surrender the same at the office of the
Trustee in Milwaukee, Wisconsin, or elsewhere if authorized by the Company, for
cancellation, in exchange for other bonds of the said series of the same
aggregate principal amount, bearing interest as provided in Section 2.01 hereof
thereupon, and upon receipt of any payment required under the provisions of
Section 2.04 hereof, the Company shall execute and deliver to the Trustee and
the Trustee shall authenticate and deliver such other registered bonds to such
registered holder at its office or at any other place specified as aforesaid.
SECTION 2.04. No charge shall be made by the Company for any exchange or
transfer of bonds of the Series due , other than for taxes or
other governmental charges, if any, that may be imposed in relation thereto.
SECTION 2.05. (a) Except as provided in subsections (c) and (g) below, the
registered holder of all of the bonds of the Series due shall be
The Depository Trust Company ("DTC") and the bonds of the Series due
shall be registered in the name of Cede & Co., as nominee for DTC.
Payment of principal of [premium, if any,] and interest on any bonds of the
Series due registered in the name of Cede & Co. shall be made by
transfer of New York Federal or equivalent immediately available funds with
respect to the bonds of the Series due to the account of Cede &
Co. on each such payment date for the bonds of the Series due at
the address indicated for Cede & Co. in the Bond Register kept by the Trustee.
(b) The bonds of the Series due shall be initially issued in
the form of a separate single authenticated fully registered certificate in the
principal amount of the bonds of the Series due . Upon initial
issuance, the ownership of such bonds of the Series due shall be
registered in the Bond Register kept by the Trustee in the name of Cede & Co.,
as nominee of DTC. The Trustee and the Company may treat DTC (or its nominee) as
the sole and exclusive registered holder of the bonds of the Series due
registered in its name for the purposes of payment of the
principal of and interest on the bonds of the Series due and of
giving any notice permitted or required to be given to registered holders under
the Indenture, except as provided in Section 2.05(g) below; and neither the
Trustee nor the Company shall be affected by any notice to the contrary. Neither
the Trustee nor the Company shall have any responsibility or obligation to any
of DTC's participants (each a "Participant"), any person claiming a beneficial
ownership in the bonds of the Series due under or through DTC or
any Participant (each a "Beneficial Owner"), or any other person that is not
shown on the Bond Register maintained by the Trustee as being a registered
holder, with respect to the accuracy of any records maintained by DTC or any
Participant; the payment of DTC or any Participant of any amount in respect of
the principal of, [premium, if any,] or interest on the bonds of the Series due
; any notice that is permitted or required to be given to
registered holders under the Indenture of bonds of the Series due
; or any consent given or other action taken by DTC as bondholder.
The Trustee shall pay all principal of, [premium, if any,] and interest on the
bonds of the Series due
<PAGE>
8
registered in the name of Cede & Co. only to or "upon the order
of" DTC (as that term is used in the Uniform Commercial Code as adopted in New
York and Wisconsin), and all such payments shall be valid and effective to fully
satisfy and discharge the Company's obligations with respect to the principal
of, [premium, if any,] and interest on such bonds of the Series due
to the extent of the sum or sums so paid. Except as otherwise
provided in Sections 2.05(c) and (g) below, no person other than DTC shall
receive authenticated bond certificates evidencing the obligation of the Company
to make payments of principal of, [premium, if any,] and interest on the bonds
of the Series due . Upon delivery by DTC to the Trustee of written
notice to the effect that DTC has determined to substitute a new nominee in
place of Cede & Co., and subject to the provisions of the Indenture with respect
to transfers of bonds, the word "Cede & Co." in this Supplemental Trust
Indenture shall refer to such new nominee of DTC.
(c) If the Company in its discretion determines that it is in the best
interest of the Beneficial Owners that they be able to obtain bond certificates,
the Company may notify DTC and the Trustee, whereupon DTC will notify the
Participants of the availability through DTC of bond certificates. In such
event, the Trustee shall issue, transfer and exchange bond certificates as
requested by DTC in appropriate amounts pursuant to Article II of the Indenture
and Section 2.03 of this Supplemental Trust Indenture. The Company shall pay all
costs in connection with the production of bond certificates if the Company
makes such a determination under this Section 2.05(c). DTC may determine to
discontinue providing its services with respect to the bonds of the Series due
at any time by giving written notice to the Company and the
Trustee and discharging its responsibilities with respect thereto under
applicable law. Under such circumstances (if there is no successor book-entry
depository), the Company and the Trustee shall be obligated (at the sole cost
and expense of the Company) to deliver bond certificates as described in this
Supplemental Trust Indenture. If bond certificates are issued, the provisions of
the Indenture shall apply to, among other things, the transfer and exchange of
such certificates and the method of payment and principal of, [premium, if any,]
and interest on such certificates. Whenever DTC requests the Company and the
Trustee to do so, the Company will direct the Trustee (at the sole cost and
expense of the Company) to cooperate with DTC in taking appropriate action after
reasonable notice (1) to make available one or more separate certificates
evidencing the bonds of the Series due to any Participant or (2)
to arrange for another book-entry depository to maintain custody of certificates
evidencing the bonds of the Series due registered in the name Cede
& Co. Any successor book-entry depository must be a clearing agency registered
with the Securities and Exchange Commission pursuant to Section 17A of the
Securities Exchange Act of 1934 and must enter into an agreement with the
Company and the Trustee agreeing to act as the depository and clearing agency
for the bonds of the Series due (except as provided in Section
2.05(g) below). After such agreement has become effective, DTC shall present the
bonds of the Series due for registration of transfer in accordance
with Section 2.11 of the Indenture, and the Trustee shall register them in the
name of the successor book-entry depository or its nominee. If a successor
book-entry depository has not accepted such position before the effective date
of DTC's termination of its services, the book-entry system shall automatically
terminate and may not be reinstated without the consent of all registered
holders of the bonds of the Series due .
(d) Notwithstanding any other provision of this Supplemental Trust Indenture
to the contrary, so long as any bonds of the Series due are
registered in the name of Cede & Co., as nominee of DTC, all payments with
respect to the principal of, [premium, if any,] and interest on such bonds of
the Series due and all notices with respect to such bonds of the
Series due shall be made and given, respectively, to DTC as
provided in the representation letter dated as of the date of delivery of the
bonds of the Series due among DTC, the Company and the Trustee.
The Trustee is hereby authorized and directed to comply with all terms of the
representation letter.
(e) In connection with any notice or other communication to be provided to
pursuant to the Indenture for the bonds of the Series due by the
Company or the Trustee with respect to any consent or other action to be taken
by the registered holders of the bonds of the Series due
<PAGE>
9
, the Company or the Trustee, as the case may be, shall seek to
establish a record date to the extent permitted by the Indenture for such
consent or other action and give DTC notice of such record date not less than
fifteen (15) calendar days in advance of such record date to the extent
possible. Such notice to DTC shall be given only when DTC is the sole registered
holder.
(f) NEITHER THE COMPANY NOR THE TRUSTEE WILL HAVE ANY RESPONSIBILITY OR
OBLIGATIONS TO THE PARTICIPANTS OR THE BENEFICIAL OWNERS WITH RESPECT TO (1) THE
ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY PARTICIPANT; (2) THE PAYMENT BY
DTC OR ANY PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF
THE PRINCIPAL OF, [PREMIUM, IF ANY,] OR INTEREST ON THE BONDS OF THE SERIES DUE
; (3) THE DELIVERY BY DTC OR ANY PARTICIPANT OF ANY NOTICE TO
ANY BENEFICIAL OWNER WHICH IS REQUIRED OR PERMITTED UNDER THE TERMS OF THE
INDENTURE TO BE GIVEN TO REGISTERED HOLDERS; OR (4) ANY CONSENT GIVEN OR OTHER
ACTION TAKEN BY DTC AS A REGISTERED HOLDER.
SO LONG AS CEDE & CO. IS THE REGISTERED HOLDER OF THE BONDS OF THE SERIES
DUE AS NOMINEE OF DTC, REFERENCES HEREIN TO THE BONDS OF THE
SERIES DUE OR REGISTERED HOLDERS OF THE BONDS OF THE SERIES DUE
SHALL MEAN CEDE & CO. AND SHALL NOT MEAN THE BENEFICIAL OWNERS
OF THE BONDS OF THE SERIES DUE NOR DTC PARTICIPANTS.
(g) The Company, in its sole discretion, may terminate the services of DTC
with respect to the bonds of the Series due if the Company
determines that: (i) DTC is unable to discharge its responsibilities with
respect to the bonds of the Series due ; or (ii) a continuation of
the requirement that all of the outstanding bonds of the Series due
be registered with the registration books kept by the Trustee in
the name of Cede & Co., as nominee of DTC, is not in the best interest of the
Beneficial Owners of the bonds of the Series due . After such
event and if no substitute book-entry depository is appointed by the Company,
bond certificates will be delivered as described in the Indenture.
(h) Upon the termination of the services of DTC with respect to the bonds of
the Series due pursuant to subsections (c) or (g) of this Section
2.05 after which no substitute book-entry depository is appointed, the bonds of
the Series due shall be registered in whatever name or names
registered holders transferring or exchanging bonds of the Series due
shall designate in accordance with the provisions of the
Indenture.
ARTICLE III.
SINKING FUND
SECTION 3.01 (a) The Company covenants that it will on the first day of
of each year commencing , , and continuing so long as any of
the bonds of the Series due , are outstanding, pay or cause to be
paid to the Trustee, for and as a fund for the use and benefit of the holders of
bonds of the Series due , a sum in lawful money of the United
States of America equal to the amount required to redeem on the first day of
next following the date of such payment, in accordance with Section 3.02,
1% of the highest aggregate principal amount of bonds of that series at any time
outstanding. Such fund shall be the Sinking Fund for bonds of the Series due
. [The Company covenants that it will meet its obligations under
the immediately preceding sentence for the year solely and entirely through
the application of an Amount of Established Permanent Addition in the manner
hereinafter set forth in subdivision (c) of this Section 3.01.]
(b) The delivery by the Company to the Trustee of bonds of the Series due
, shall, for the purposes of satisfying the Sinking Fund for bonds
of that series, be deemed equivalent under this Section to the payment of cash
equal to the amount required to effect the redemption of the bonds so delivered
on the first day of next following such delivery. If any bonds of the
Series due
<PAGE>
10
, have been redeemed or retired and no bonds have theretofore been
issued, cash withdrawn, or credit taken under any of the provisions of the
Indenture on account of the redemption or retirement of such bonds, the Company
may deduct from any payment for the Sinking Fund for bonds of the Series due
, an amount equivalent to the amount required to effect the
redemption of a like amount of bonds of that series for the Sinking Fund for
bonds of the Series due , on the first day of next
following, provided that the Company thereafter shall not issue any bonds,
withdraw any cash, or take any credit under any of the provisions of the
Indenture on account of the redemption or retirement of such bonds and such
bonds shall be cancelled. For the purpose of this subdivision (b), credit shall
be deemed to have been taken for any bonds redeemed or retired if used, as a
reduction of the amount of cash required to be deposited with the Trustee under
any provision of the Indenture or out of funds pledged with the Trustee under
any provision of the Indenture, other than funds deposited with the Trustee for
the payment of bonds upon maturity or upon redemption at the option of the
Company.
(c) The delivery by the Company to the Trustee of a written application of
the Company signed by its President or a Vice President, to apply an Amount of
Established Permanent Additions established as provided in Sections 5.05 and
5.06 of the Indenture (which has not been applied previously to any other
purpose specified in the Indenture) to the Sinking Fund provided for in this
Article III, for purposes of said Sinking Fund shall be deemed equivalent under
this Section to the payment of cash equal to the amount required to effect the
redemption on the first day of next following of a principal amount of
Bonds of this Series equal to 66 2/3% of the Amount of Established Permanent
Additions so applied.
SECTION 3.02. (a) As soon as may be, after each payment to the Sinking Fund
provided for bonds of the Series due , is so made, the Trustee
shall apply the moneys in such Sinking Fund to the purchase of bonds of the
Series due , in the open market, at the lowest price or prices
obtainable, but not to exceed the price at which the bonds of such series are
then redeemable for the Sinking Fund as herein provided. If within 20 days after
each payment to the Sinking Fund, the Trustee shall be unable to purchase bonds
of the Series due , as aforesaid, sufficient to reduce the amount
of money held in the Sinking Fund to less than $10,000, the Trustee shall apply
the Sinking Fund for bonds of the Series due , or the balance
thereof to the redemption on the first day of next following the receipt
of such cash by the Trustee, of bonds of such series at the sinking fund
redemption prices provided for in Section 2.02 of this Supplemental Trust
Indenture.
(b) The particular bonds to be redeemed for the Sinking Fund shall be
selected by the Trustee by lot, in such manner as it shall deem proper in its
discretion, from the distinctive numbers borne by or assigned to registered
bonds of the Series due , as herein provided. For each registered
bond of a denomination in excess of $1,000, the Trustee shall assign a
distinctive number of each $1,000 of the principal amount thereof. Registered
bonds shall be deemed to have been drawn by lot if and to the extent that the
numbers borne by or assigned thereto as above provided are selected as
aforesaid. The Trustee shall notify the Company in writing of the distinctive
numbers of the bonds of the Series due , to be redeemed for the
Sinking Fund. The Trustee is authorized and empowered hereby to give or cause to
be given on behalf of the Company the notice required by Section 2.02 hereof in
order to redeem bonds for Sinking Fund purposes.
(c) On and after the commencement of notice of redemption of bonds pursuant
to this Section, the Trustee shall (subject to the provisions of Section 21.03
of the Indenture) hold the moneys necessary to redeem the bonds so to be
redeemed as a separate trust fund for the account of the respective holders
thereof and such moneys shall be paid to them respectively upon presentation and
surrender of such bonds; and after the redemption date, such bonds shall cease
to be entitled to the lien, benefits, or security of the Indenture, and as
respects the Company's liability thereon such bonds and all claims for interest
thereon shall be deemed to have been paid; this Section being in all respects
subject to the provisions of Section 21.03 of the Indenture, except that, on and
after commencement of
<PAGE>
11
notice of redemption of bonds pursuant to this Section 3.02, such bonds shall be
deemed to have been redeemed from the holder or holders thereof and paid for the
purpose of release and satisfaction of the Indenture.
(d) If there shall be drawn for redemption a portion of the principal amount
less than the entire amount of any registered bond, the Company shall execute
and the Trustee shall authenticate and deliver without charge to the holder
thereof registered bonds of the Series due , for the unredeemed
balance of such registered bond.
SECTION 3.03. All bonds delivered to the Trustee in lieu of cash, or
purchased by the Trustee, or redeemed by operation of the Sinking Fund in
accordance with the provisions of this Article, shall be cancelled by the
Trustee. Bonds so cancelled shall not be reissued and no additional bonds shall
be authenticated and delivered in substitution therefor or on account of the
retirement thereof and no credit shall be taken of cash withdrawn under the
provisions of the Indenture on the basis thereof.
ARTICLE IV.
APPOINTMENT OF AUTHENTICATING AGENT
SECTION 4.01. The Trustee shall, if requested in writing so to do by the
Company, promptly appoint an agent or agents of the Trustee who shall have
authority to authenticate registered bonds of the Series due , in
the name and on behalf of the Trustee. Such appointment by the Trustee shall be
evidenced by a vice-president of the Trustee delivered to the Company prior to
the effectiveness of such appointment.
SECTION 4.02. (a) Any such authenticating agent shall be acceptable to the
Company and shall at all times be a corporation which is organized and doing
business under the laws of the United States or of any State, is authorized
under such laws to act as authenticating agent, has a combined capital and
surplus between $5,000,000 and $10,000,000, and is subject to supervision or
examination by federal or state authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 4.02 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) Any corporation into which any authenticating agent may lawfully be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion, or consolidation to which any
authenticating agent shall be a party, or any corporation succeeding to the
corporate agency business of any authenticating agent, shall continue to be the
authenticating agent without the execution or filing of any paper or any further
act on the part of the Trustee or the authenticating agent.
(c) Any authenticating agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time,
and upon written request of the Company to the Trustee shall, terminate the
agency of any authenticating agent by giving written notice of termination to
such authenticating agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible in accordance with the
provisions of this Section 4.02, the Trustee, unless otherwise requested in
writing by the Company, promptly shall appoint a successor authenticating agent,
which shall be acceptable to the Company. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties, and responsibilities of its predecessor hereunder, with
like effect as if originally named. No successor authenticating agent shall be
appointed unless eligible under the provisions of this Section 4.02.
(d) The Trustee agrees to pay to any authenticating agent, appointed in
accordance with the provisions of this Section 4.02, reasonable compensation for
its services, and the Trustee shall be entitled to be reimbursed for such
payments.
<PAGE>
12
SECTION 4.03. If an appointment is made pursuant to this Article IV, the
registered bonds of the Series due , shall have endorsed thereon,
in addition to the Trustee's Certificate, an alternate Trustee's Certificate in
the following form:
This bond is one of the bonds of the Series designated therein, described in
the within-mentioned Indenture.
FIRSTAR TRUST COMPANY,
as Trustee,
By
Authenticating Agent,
By
Authorized Officer.
SECTION 4.04. No provision of this Article IV shall require the Trustee to
have at any time more than one such authenticating agent for any one State or to
appoint any such authenticating agent in the State in which the Trustee has its
principal place of business.
ARTICLE V.
FINANCING STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE
SECTION 5.01. The name and address of the debtor and secured party are set
forth below:
Debtor: Northern States Power Company
100 North Barstow Street
Eau Claire, Wisconsin 54701
Secured Party: Firstar Trust Company, Trustee
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53201
NOTE: Northern States Power Company, the debtor above named, is "a
transmitting utility" under the Uniform Commercial Code as adopted in Michigan
and Wisconsin.
SECTION 5.02. Reference to Article I hereof is made for a description of the
property of the debtor covered by this Financing Statement with the same force
and effect as if incorporated in this Section at length.
SECTION 5.03. The maturity dates and respective principal amounts of
obligations of the debtor secured and presently to be secured by the Indenture,
reference to all of which for the terms and conditions thereof is hereby made
with the same force and effect as if incorporated herein at length, are as
follows.
<TABLE>
<CAPTION>
OUTSTANDING
FIRST MORTGAGE BONDS PRINCIPAL AMOUNT
- ------------------------------------------------------------------------ ----------------
<S> <C>
Series due April 1, 2021................................................ $ 44,635,000
Series due March 1, 2023................................................ $ 110,000,000
Series due October 1, 2003.............................................. $ 40,000,000
</TABLE>
SECTION 5.04. This Financing Statement is hereby adopted for all of the
First Mortgage Bonds of the series mentioned above secured by the Indenture.
<PAGE>
13
SECTION 5.05. The 1947 Indenture and the prior Supplemental Trust
Indentures, and the Restated Indenture, as set forth below, have been filed or
recorded in each and every office in the States of Michigan and Wisconsin
designated by law for the filing or recording thereof in respect of all property
of the Company subject thereto:
Original Indenture
Dated April 1, 1947
Supplemental Trust Indenture
Dated March 1, 1949
Supplemental Trust Indenture
Dated June 1, 1957
Supplemental Trust Indenture
Dated August 1, 1964
Supplemental Trust Indenture
Dated December 1, 1969
Supplemental Trust Indenture
Dated September 1, 1973
Supplemental Trust Indenture
Dated February 1, 1982
Supplemental Trust Indenture
Dated March 1, 1982
Supplemental Trust Indenture
Dated June 1, 1986
Supplemental Trust Indenture
Dated March 1, 1988
Supplemental and Restated Trust Indenture
Dated March 1, 1991
Supplemental Trust Indenture
Dated April 1, 1991
Supplemental Trust Indenture
Dated March 1, 1993
Supplemental Trust Indenture
Dated October 1, 1993
SECTION 5.06. The property covered by this Financing Statement also shall
secure additional series of First Mortgage Bonds of the debtor that may be
issued from time to time in the future in accordance with the provisions of the
Indenture.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. The recitals of fact herein, except the recital that the
Trustee has duly determined to execute this Supplemental Trust Indenture and be
bound, insofar as it may lawfully so do, by the provisions hereof and in the
bonds shall be taken as statements of the Company and shall not be construed as
made by the Trustee. The Trustee makes no representations as to the value of any
of the property subjected to the Lien of the Indenture, or any part thereof, or
as to the title of the Company thereto, or as to the security afforded thereby
and hereby, or as to the validity of this Supplemental Trust Indenture or of the
bonds issued under the Indenture by virtue hereof (except the Trustee's
certificate), and the Trustee shall incur no responsibility in respect of such
matters.
SECTION 6.02. This Supplemental Trust Indenture shall be construed in
connection with and as a part of the Indenture.
SECTION 6.03. (a) If any provision of this Supplemental Trust Indenture
limits, qualifies, or conflicts with another provision of the Indenture required
to be included in indentures qualified under the Trust Indenture Act of 1939 (as
enacted prior to the date of this Supplemental Trust Indenture) by any of the
provisions of Sections 310 to 317, inclusive, of the said Act, such required
provisions shall control.
(b) In case any one or more of the provisions contained in this Supplemental
Trust Indenture or in the bonds issued hereunder should be invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected, impaired, prejudiced, or disturbed thereby.
SECTION 6.04. Wherever in this Supplemental Trust Indenture the word
"Indenture" is used without the prefix "1947", "Original", "Restated" or
"Supplemental" such word was used intentionally to include in its meaning the
1947 Indenture, as amended and restated by the Restated Indenture, and all
indentures supplemental thereto.
<PAGE>
14
SECTION 6.05. Wherever in this Supplemental Trust Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Supplemental Trust Indenture contained by or on behalf of the Company or by
or on behalf of the Trustee shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so expressed or not.
SECTION 6.06. (a) This Supplemental Trust Indenture may be simultaneously
executed in several counterparts, and all said counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
(b) The Table of Contents and the descriptive headings of the several
Articles of this Supplemental Trust Indenture were formulated, used and inserted
in this Supplemental Trust Indenture for convenience only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
------------------------
The amount of obligations to be issued forthwith under the Indenture is
$ .
------------------------
<PAGE>
15
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY, a Wisconsin corporation,
party of the first part, has caused its corporate name and seal to be hereunto
affixed, and this Supplemental Trust Indenture to be signed by its President or
a Vice President, and attested by its Secretary or an Assistant Secretary, for
and in its behalf, and FIRSTAR TRUST COMPANY, a corporation duly organized and
existing under and by virtue of the laws of the State of Wisconsin, as Trustee,
party of the second part, to evidence its acceptance of the trust hereby
created, has caused its corporate name and seal to be hereunto affixed, and this
Supplemental Trust Indenture to be signed by its President or a Vice President,
and attested by its Secretary or an Assistant Secretary, for and in its behalf,
all done this day of A.D. .
<TABLE>
<S> <C> <C>
NORTHERN STATES POWER COMPANY.
By ,
(CORPORATE SEAL)
Attest:
,
Executed by Northern States
Power Company in presence of:
,
, WITNESSES.
FIRSTAR TRUST COMPANY,
By ,
(CORPORATE SEAL)
Attest:
, ASSISTANT SECRETARY
Executed by Firstar
Trust Company in presence of:
,
, WITNESSES.
</TABLE>
<PAGE>
16
<TABLE>
<S> <C>
STATE OF WISCONSIN ss.:
EAU CLAIRE COUNTY
</TABLE>
On this the day of , before me, , the
undersigned officer, personally appeared and
, who acknowledged themselves to be the
and , respectively, of Northern States Power
Company, a Wisconsin corporation, and that they, as such
and , respectively, being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by signing
the name of the corporation by themselves as and
, respectively.
In Witness Whereof, I hereunto set my hand and official seal.
NOTARY PUBLIC IN AND FOR EAU CLAIRE COUNTY
STATE OF WISCONSIN
MY COMMISSION EXPIRES .
(NOTARIAL SEAL)
<TABLE>
<S> <C>
STATE OF WISCONSIN ss.:
MILWAUKEE COUNTY
</TABLE>
On this the day of , before me, , the
undersigned officer, personally appeared and
, who acknowledged themselves to be the and
, respectively, of Firstar Trust Company, a corporation, and
that they, as such and , respectively, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by themselves as
and , respectively.
In Witness Whereof, I hereunto set my hand and official seal.
NOTARY PUBLIC IN AND FOR MILWAUKEE COUNTY
STATE OF WISCONSIN
PERMANENT COMMISSION EXPIRES
(NOTARIAL SEAL)
<PAGE>
A-1
SCHEDULE A
The property referred to in the granting clause in the foregoing
Supplemental Trust Indenture from Northern States Power Company to Firstar Trust
Company, as Trustee, dated , includes parts or parcels of real
property and other property hereinafter more specifically described. Such
description, however, is not intended to limit or impair the scope or intention
of the general description contained in the granting clauses or elsewhere herein
or in the Indenture.
I.
PROPERTIES IN THE STATE OF WISCONSIN
<PAGE>
A-2
MORTGAGOR'S RECEIPT FOR COPY
The undersigned, Northern States Power Company, a Wisconsin corporation, the
Mortgagor described in the foregoing instrument, hereby acknowledges that it has
this day received from Firstar Trust Company, the Mortgage described therein, a
full, true, complete, and correct copy of said instrument with signatures,
witnesses and acknowledgments thereon shown.
Dated this day of , A.D. .
NORTHERN STATES POWER COMPANY
By ,
(CORPORATE SEAL)
Attest:
,
--------------
This instrument was drafted by Northern States Power Company, 100 North
Barstow Street, Eau Claire, Wisconsin 54701.
<PAGE>
EXHIBIT 5.01
Page 1 of 2
May 1, 1996
Northern States Power Company
100 North Barstow Street
Eau Claire, Wisconsin 54701
Gentlemen:
I am participating in the proceedings being had and taken in connection with
the issuance and sale by Northern States Power Company, a Wisconsin
corporation (herein called the Company), of up to $65,000,000 principal
amount of First Mortgage Bonds (herein called the New Bonds). I have
examined all statutes, records, instruments, and documents which, in my
opinion, it is necessary to examine for the purpose of rendering the
following opinion.
Based upon the foregoing and upon my general familiarity with the Company and
its affairs, as a result of having acted as General Counsel for the Company, I
am of the opinion that:
1. The Company was incorporated and is now a legally existing corporation
under the laws of the State of Wisconsin; has corporate power, right,
and authority to do business and to own property in that state, in the
manner and as set forth in the Registration Statement, Form S-3, to
which this opinion is an exhibit; and has corporate power, right, and
authority to create, issue, and sell the New Bonds.
2. The Trust Indenture dated April 1, 1947 from the Company to Firstar
Trust Company (formerly known as First Wisconsin Trust Company),
Trustee, as supplemented by Supplemental Trust Indentures thereto
dated March 1, 1949, June 1, 1957, August 1, 1964, December 1, 1969,
September 1, 1973, February 1, 1982, March 1, 1982, June 1, 1986,
March 1, 1988, the Supplemental and Restated Trust Indenture dated
March 1, 1991, and the
<PAGE>
EXHIBIT 5.01
Page 2 of 2
Supplemental Trust Indentures dated April 1,
1991, March 1, 1993 and October 1, 1993 is a legal, valid, and binding
instrument.
3. When and if (a) the above-mentioned Registration Statement becomes
effective pursuant to the provisions of the Securities Act of 1933, as
amended, (b) the Public Service Commission of Wisconsin issues its
Order authorizing the issuance and sale of the New Bonds, (c) the
Supplemental Trust Indentures from the Company to Firstar Trust
Company, Trustee, relating to the New Bonds, are duly authorized,
executed, delivered, filed, and recorded as required by law, and (d)
the New Bonds are duly authorized, executed, authenticated, and
delivered, and the consideration for the New Bonds has been received
by the Company, all in the manner contemplated by the said
Registration Statement, the New Bonds will be legally issued and
binding obligations of the Company in accordance with their terms and
entitled to the benefits and security of said Trust Indenture, as
supplemented.
Respectfully submitted,
John P. Moore, Jr.
General Counsel
<PAGE>
EXHIBIT 12.01
NORTHERN STATES POWER COMPANY
(a Wisconsin corporation)
STATEMENT OF COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
1991 1992 1993 1994 1995
------- ------- ------- ------- -------
(THOUSANDS OF DOLLARS)
<S> <C> <C> <C> <C> <C>
Earnings
Income from continuing
operations $36,552 $38,200 $38,007 $38,545 $39,217
Add
Taxes based on income
Federal income taxes (1) 14,585 16,294 13,794 9,366 18,463
State income taxes (1) 3,279 3,475 3,091 2,711 4,676
Deferred income taxes-net (1) 4,318 3,088 7,162 7,678 1,838
Investment tax credit
adjustment - net (971) (956) (948) (943) (936)
Fixed charges 17,259 18,126 18,748 18,054 19,586
------- ------- ------- ------- -------
Earnings $75,022 $78,227 $79,854 $75,411 $82,844
======= ======= ======= ======= =======
Fixed charges
Interest charges per
statement of income $16,836 $17,691 $16,753 $17,287 18,818
Amortization of debt expense,
premium and loss on
reacquired debt 423 435 1,995 767 768
------- ------- ------- ------- -------
Total Fixed Charges $17,259 $18,126 $18,748 $18,054 $19,586
======= ======= ======= ======= =======
Ratio of earnings to fixed
charges 4.35 4.32 4.26 4.18 4.23
======= ======= ======= ======= =======
</TABLE>
(1) Includes income taxes included in Miscellaneous Income Deductions and
Non-operating Taxes.
<PAGE>
EXHIBIT 12.02
WISCONSIN ENERGY COMPANY*
UNAUDITED PRO FORMA
STATEMENT OF COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------------
1991 1992 1993 1994 1995
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Net Income $231,034 $214,150 $230,086 $220,299 $279 885
Income Tax 122,946 113,731 124,225 120,665 165,975
-------- -------- -------- -------- --------
Pretax Income 353,980 327,881 354,311 340,964 445,860
FIXED CHARGES:
Interest on Long-Term Debt 96,794 103,100 105,987 103,685 103,113
Amortization of Debt
Premium, Discount & Expense 3,325 5,571 15,613 15,136 13,420
Other Interest Expense 7,709 4,605 4,356 8,903 14,740
INTEREST FACTOR OF RENTS
Nuclear Fuel 3,174 2,098 1,697 1,896 2,401
Other 935 1,054 1,528 1,070 1,070
-------- -------- -------- -------- --------
Total Fixed Charges 111,937 116,428 129,181 130,690 134,744
Earnings Before Income
Taxes & Fixed Charges $465,917 $444,309 $483,492 $471,654 $580,604
-------- -------- -------- -------- --------
Ratio of Earnings to
Fixed Charges 4.2 3.8 3.7 3.6 4.3
</TABLE>
* In connection with the business combinations, WE will be renamed Wisconsin
Energy Company.
<PAGE>
EXHIBIT 23.01
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 (i) our
report dated February 5, 1996, appearing on page 62 of Northern States Power
Company (Minnesota)'s Annual Report on Form 10-K for the year ended December
31, 1995 and (ii) our report dated February 5, 1996, except as to the
Environmental Contingencies section of Note 8, which is as of February 19,
1996, appearing on page 22 of Northern States Power Company (Wisconsin)'s
Annual Report on Form 10-K for the year ended December 31, 1995. We also
consent to the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Minneapolis, Minnesota
May 3, 1996
<PAGE>
EXHIBIT 23.02
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Northern States Power Company (Wisconsin) (the Company) on Form S-3 of
our report on the financial statements of the Company for the years ended
December 31, 1994 and 1993, dated January 27, 1995, appearing in the Annual
Report on Form 10-K of the Company for the year ended December 31, 1995 and
of our report on the financial statements of Northern States Power Company,
Minnesota and Subsidiaries (the Companies) for the years ended December 31,
1994 and 1993, dated February 8, 1995 (which contains an explanatory
paragraph related to the Companies' change in method of accounting for
post-retirement health care costs in 1993), appearing in the Annual Report on
Form 10-K of the Companies for the year ended December 31, 1995, which is
incorporated by reference in the Company's Annual Report on Form 10-K, and
to the reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
DELOITTE & TOUCHE LLP
Minneapolis, Minnesota
May 3, 1996
<PAGE>
EXHIBIT 23.03
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 (i) our
report dated January 31, 1996 appearing on page 84 of Wisconsin Energy
Corporation's Annual Report on Form 10-K for the year ended December 31, 1995
and (ii) our report dated January 31, 1996, appearing on page 80 of Wisconsin
Electric Power Company's Annual Report on Form 10-K for the year ended
December 31, 1995. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Milwaukee, Wisconsin
May 3, 1996
<PAGE>
EXHIBIT 23.04
I do hereby consent to the use of my name in the within Registration
Statement and the accompanying Prospectus of Northern States Power Company, a
Wisconsin corporation, and to the use of my opinion as Exhibit 5.01 to said
Registration Statement.
JOHN P. MOORE, JR.
Eau Claire, Wisconsin
April 26, 1996
<PAGE>
EXHIBIT 24.01
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Wisconsin corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to $65 million principal amount of debt
securities; and
WHEREAS, each of the undersigned holds the office in the company
hereinbelow set opposite his name.
NOW, THEREFORE, each of the undersigned hereby constitutes and appoints
JOHN A. NOER and NEAL A. SIIKARLA, and each of them individually, his
attorney, with full power to act for him and in his name, place and stead, to
sign his name in the capacity set forth below to the Registration Statement
relating to the sale of up to $65 million principal amount of debt securities
and to any and all amendments (including post-effective amendments) to such
Registration Statement, and hereby ratifies and confirms all that said
attorney may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his hand
this 21st day of February, 1996.
/s/_______________________________ /s/_______________________________
John A. Noer, Principal Executive Ray A. Larson, Jr., Director
Officer and Director
/s/_______________________________ /s/_______________________________
H. Lyman Bretting, Director Larry G. Schnack, Director
/s/_______________________________ /s/_______________________________
Philip M. Gelatt, Director Loren L. Taylor, Director
/s/_______________________________
Wayne E. Harrison, Director
STATE OF WISCONSIN )
) ss.
COUNTY OF EAU CLAIRE )
On this 21st day of February, 1996, before me, John P. Moore, Jr., a
Notary Public in and for said County and State, personally appeared each of
the above-named directors of NORTHERN STATES POWER COMPANY, a Wisconsin
corporation, and known to me to be the persons whose names are subscribed to
the foregoing instrument, and each person acknowledged to me that he executed
the same as his own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the date above set forth.
My Commission is permanent. /s/______________________________________
John P. Moore, Jr.
Notary Public in and for the County
of Eau Claire, State of Wisconsin
<PAGE>
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)
NORTHERN STATES POWER COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
WISCONSIN 39-0508315
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
100 NORTH BARSTOW STREET
EAU CLAIRE, WISCONSIN 54702-0008
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
FIRST MORTGAGE BONDS
(TITLE OF INDENTURE SECURITIES)
<PAGE>
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 APRIL 29, 1996
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
Per General Instruction B to Form T-1, no response is required to this
item as 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 as 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 as the obligor is not presently in default.
<PAGE>
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 as 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 APRIL 29, 1996
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 as 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 APRIL 29, 1996
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 as the obligor is not presently in default.
<PAGE>
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 APRIL 29, 1996
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 as 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 APRIL 29, 1996
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 as 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 APRIL 29, 1996
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 as the obligor is not presently in default.
<PAGE>
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 APRIL 29, 1996
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 as 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:
AS OF APRIL 29, 1996
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 as 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 as 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 as the obligor is not presently in default.
<PAGE>
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 as 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
(f/k/a First Wisconsin Trust Company) as now in effect (filed
herewith).
2. Certificate of authority of the Trustee to commence business
(contained in Exhibit 1).
3. Authorization of the Trustee to exercise trust powers (contained
in Exhibit 1).
4. A copy of the existing By-Laws of Firstar Trust Company (f/k/a
First Wisconsin Trust Company) (filed herewith).
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 requirement of its supervising or
examining authority.
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 29th day of April, 1996.
FIRSTAR TRUST COMPANY
(Trustee)
By: /s/ Gene E. Ploeger
-----------------------------------------
GENE E. PLOEGER, ASSISTANT VICE PRESIDENT
(Name and title)
By: /s/ Yvonne Siira
-----------------------------------------
YVONNE SIIRA, ASSISTANT SECRETARY
(Name and title)
<PAGE>
ARTICLES OF ASSOCIATION
OF FIRSTAR TRUST COMPANY
MILWAUKEE, WISCONSIN
KNOW ALL MEN BY THESE PRESENTS, that we, Frederick Pabst, L.J. Petit, Frederick
Kasten, Oliver C. Fuller and Edward P. Vilas, of the City and County of
Milwaukee and State of Wisconsin, have associated and do hereby associate for
the purpose of forming a corporation, to wit, a trust company bank under and
pursuant to the privileges and restrictions of the statutes of the State of
Wisconsin, in that behalf made and provided; and particularly Chapters 221 and
223 of said statutes, and thereto adopt the following:
ARTICLE 1
The purpose and business of this corporation shall be those of both a state bank
and a trust company bank as defined by Wisconsin law, this corporation being a
trust company bank which has been converted into a state bank in accordance with
such law.
ARTICLE 2
The name of this corporation shall be "FIRST WISCONSIN TRUST COMPANY," and its
location shall be at the City and County of Milwaukee and State of Wisconsin.
ARTICLE 3
The capital stock of this Corporation shall be One Million Dollars ($1,000,000),
divided into ten thousand (10,000) shares of the par value of One Hundred
Dollars ($100) each.
ARTICLE 4
The Board of Directors shall consist of such number of individuals, not less
than fifteen nor more than sixty, as from time to time shall be prescribed in
the By-laws, at least two-thirds of whom shall be residents of Wisconsin and the
majority of whom shall be residents of Milwaukee County or adjacent counties.
Each of said directors shall be elected for a term of one year and until his
successor has been elected and qualified.
In witness whereof, we have hereunto subscribed our names at Milwaukee,
Wisconsin, on this first day of July, A.D. 1903.
(Signed) Frederick Pabst
L.J. Petit
Fred Kasten
Oliver C. Fuller
Edward P. Vilas
State of Wisconsin
Milwaukee County
<PAGE>
On this first day of July, A.D. 1903, personally appeared before me the above
signed Frederick Pabst, L.J. Petit, Frederick Kasten, Oliver C. Fuller, and
Edward P. Vilas, to me known to be the persons who executed the foregoing
instrument and severally acknowledge the same.
My commission will expire on the 30th day of December, 1906.
(Signed) W.L. Cheney
Notary Public
Milwaukee County,
Wisconsin
)
) ss.
)
<PAGE>
EXHIBIT 1
STATE OF WISCONSIN
OFFICE OF COMMISSIONER OF BANKING
BANKS DIVISION
POST OFFICE BOX 7876
MADISON, WISCONSIN 53707-7876
(TELEPHONE: 608-266-1621)
AMENDMENT TO ARTICLES
CERTIFICATION
I, Toby E. Sherry, Commissioner of Banking of the State of Wisconsin, do hereby
certify that an amendment to the original Articles of Incorporation of First
Wisconsin Trust Company, Milwaukee, Wisconsin, of which a duly verified copy is
hereto attached, was on the 17th day of August, A.D. 1992, approved and filed in
the Office of Commissioner of Banking. This amendment relates to corporate name
and was adopted by stockholders of the above bank on July 16, 1992.
IN TESTIMONY WHEREOF, I have set my hand and
affixed my official seal. Done at my office
in the City of Madison this 17th day of
August, A.D. 1992.
Toby E. Sherry
Commissioner of Banking
IMPORTANT: TO BE RECORDED BY THE REGISTER OF DEEDS TOGETHER WITH THE
ATTACHED COPY OF THE AMENDMENT
<PAGE>
We, Robert L. Webster as President, and James D. Hintz as Cashier of First
Wisconsin Trust Company do hereby certify that the foregoing is a true copy of
an amendment to the Articles of Incorporation of this bank and that at the
annual or special meeting of the stockholders of the bank, called for that
purpose and held pursuant to the provisions of law, in the office of the bank in
the City of Milwaukee, State of Wisconsin, on the 16th day of July, A.D. 1992,
the said amendment was duly adopted by the affirmative vote of two-thirds of all
capital stock outstanding; that the majority stockholder was present or
represented at said meeting; that the entire number of shares outstanding is
10,000; that the number of shares represented at the meeting was 9,952; that
upon the adoption of such resolution 9,952 votes were cast in the affirmative;
one vote for each share, and that 0 votes were cast in the negative.
In Testimony Whereof, First Wisconsin Trust Company has caused these presents to
be executed by the President and Cashier thereof and the corporate seal of said
bank is hereunto affixed this 28th day of July, A.D. 1992, by its authority.
First Wisconsin Trust Company
In presence of
Sharon L. Gazzana By Robert L. Webster, President
Sandra L. Belongia James Hintz, Cashier
State of Wisconsin )
) ss.
Milwaukee County )
Personally came before me this 28th day of
July, A.D. 1992, Robert L. Webster as President, and James D. Hintz as Cashier
of the First Wisconsin Trust Company, who are to me known to be such President
and Cashier, respectively, and to be the persons who executed the foregoing
instrument, and acknowledged the same as such officers, for the purposes therein
mentioned.
Diane M. Rampacek
Notary Public
Milwaukee County, Wisconsin
My commission expires 1/3/99
<PAGE>
AMENDMENT TO ARTICLES OF INCORPORATION
Which Articles were filed/recorded in the office of the Register of Deeds for
Milwaukee County on the 6th day of July, 1903. Recorded in Volume S of
Corporations, Page 134.
At a meeting of the stockholders of First Wisconsin Trust Company of Milwaukee,
Wisconsin, held at the office of said bank in said City on the 16th day of July,
A.D. 1992, at 9:30 o'clock A.M., of that day, which meeting was called for the
purpose of amending the Articles of Incorporation of said bank, and at which
meeting 9,952 shares of the capital stock of said bank were duly represented,
the following resolutions were adopted:
"Resolved That the Articles of Incorporation of the bank be amended by striking
out the paragraph relating to the name reading as follows:
"The name of this corporation shall be "FIRST WISCONSIN TRUST COMPANY, and its
location shall be at the City and County of Milwaukee and State of Wisconsin."
And Inserting in lieu thereof the following paragraph:
"The title of the Corporation shall be Firstar Trust Company, and its location
shall be at the City and County of Milwaukee and State of Wisconsin."
"It was further resolved, That the President and Cashier of said bank be
authorized, under the seal of the Corporation, to file proper certificates of
such amendment with the Commissioner of Banking as provided by law."
<PAGE>
EXHIBIT I
Sec. 221.12, Wis. Stats.
STATE OF WISCONSIN
OFFICE OF COMMISSIONER OF BANKING
101 E WILSON ST, 5th FLOOR - P.O. BOX 7876
MADISON, WISCONSIN 53707-7876
Telephone (608) 266-1621 Fax (608) 267-6889
--------------------------------------------
AMENDMENT TO ARTICLES OF INCORPORATION
CERTIFICATION
I, Richard L. Dean, Commissioner of Banking of the State of Wisconsin, do hereby
certify that an amendment to the Articles of Incorporation of the
FIRSTAR TRUST COMPANY , MILWAUKEE, WISCONSIN
- ------------------------------------ ---------------------------------------
(Bank) (Location)
of which a duly verified copy is hereto attached, was approved by the Office of
Commissioner of Banking on the 5th day of February, 1996.
This amendment relates to
CHANGE IN BOARD OF DIRECTORS
- --------------------------------------------------------------------------------
and was adopted by the stockholders of the above bank on the 29th day of
January, 1996.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and affixed my official seal. Done
at my office in the City of Madison this 5th
day of February, 1996.
-----------------------------------------------
Richard L. Dean
Commissioner of Banking
NOTE: TO BE RECORDED BY THE REGISTER OF DEEDS TOGETHER WITH THE
ATTACHED COPY OF THE AMENDMENT.
<PAGE>
AMENDMENT TO ARTICLES OF INCORPORATION
--------------------
Which Articles were filed/recorded in the office of the Register of Deeds for
Milwaukee County on July 6, 1903. Recorded in Volume S of Corporations, Page(s)
134-137 as Document Number ________________________.
We, Robert L. Webster as President, and James D. Hintz as Cashier of Firstar
Trust Company do hereby certify that the following amendment to the Articles of
Incorporation of this bank was approved at the annual or special meeting of the
stockholders of the bank, called for that purpose and held pursuant to the
provisions of law, in the office of the bank in Milwaukee, Wisconsin, on
January 29, 1996; and the said amendment was duly adopted by the affirmative
vote of two-thirds of the 10,000 shares of outstanding capital stock, with 9,995
votes cast in the affirmative and 0 votes cast in the negative; and the
following resolutions were adopted:
RESOLVED THAT THE ARTICLES OF INCORPORATION BE AMENDED BY STRIKING OUT THE TEXT
OF ARTICLE FOURTH READING:
"The Board of Directors shall consist of such number of individuals, not less
than fifteen nor more than sixty, as from time to time shall be prescribed in
the By-laws, at least two-thirds of whom shall be residents of Wisconsin and the
majority of whom shall be residents of Milwaukee County or adjacent counties.
Each of said directors shall be elected for a term of one year and until his
successor has been elected and qualified."
AND INSERTING IN LIEU THEREOF THE FOLLOWING PARAGRAPH:
"The Board of Directors shall consist of such number of individuals, not less
than five nor more than thirty, as from time to time shall be prescribed in the
By-laws, at least two-thirds of whom shall be residents of Wisconsin. Each of
said directors shall be elected for a term of one year and until his successor
has been elected and qualified.
"IT WAS FURTHER RESOLVED, THAT THE PRESIDENT AND CASHIER OF SAID BANK BE
AUTHORIZED, UNDER THE SEAL OF THE CORPORATION, TO FILE THE PROPER CERTIFICATES
OF SUCH AMENDMENTS WITH THE COMMISSIONER OF BANKING AS PROVIDED BY LAW."
<PAGE>
[CORPORATE SEAL] We, Robert L. Webster, President, and James D. Hintz,
Cashier of the above-named bank, do solemnly swear that
the foregoing is true to the best of our knowledge and
belief.
STATE OF WISCONSIN ) ss.
COUNTY OF MILWAUKEE )
Subscribed and sworn to before me this 30 day of January, 1996.
Diane M. Rampacek, Notary Public. My commission expires 1/3/99.
<PAGE>
EXHIBIT 4
AS AMENDED THROUGH FEBRUARY 5, 1996
RESTATED BY-LAWS OF
FIRSTAR TRUST COMPANY
ADOPTED JANUARY 15, 1963
ARTICLE 1
The annual meeting of this Corporation for the election of its directors and the
transaction of its general business shall be held on the third Thursday of
February at the general office of this Corporation in the City of Milwaukee, at
8 o'clock in the morning, or at such other hour and place in the City of
Milwaukee as shall be designated by the Board of Directors. If any hour other
than 8 o'clock in the morning or any place other than the general office of this
Corporation shall be so designated, notice thereof shall be given by mailing the
same to each stockholder at his last known address at least ten (10) days prior
to the holding of said meeting.
ARTICLE 2
Special meetings of the stockholders of this Corporation shall be held in the
City of Milwaukee and may be called at any time by order of the Chairman of the
Board, the President, or one of the Vice Presidents, or by the Board of
Directors, by mailing to each stockholder at his last known address at least ten
(10) days prior to the date of the holding of such special meeting, a notice
specifying the time and place of such special meeting and the business to be
transacted thereat, and no other business shall be transacted at said meeting.
ARTICLE 3
SECTION 1. Every stockholder may vote and participate at any meeting of
stockholders, either in person or by proxy. No proxy shall be recognized unless
the same shall be in writing, subscribed by the stockholder nor unless filed
with the Secretary prior to the meeting. No active or salaried officer may act
as a proxy for a stockholder.
SECTION 2. The Cashier shall maintain a stock book showing the name, residence,
and number of shares held by each stockholder, which shall at all times, during
the usual hours for transacting business, be subject to inspection by the
officers, directors, and stockholders of the Company.
ARTICLE 4
SECTION 1. The Board of Directors shall consist of not less than five nor more
than thirty directors, the number of directors to be determined by resolution
adopted at each annual stockholders' meeting, or at any special stockholders'
meeting duly called for such purpose. On and after January 1, 1978, no person
shall be eligible to be elected or re-elected as a member of the Board of
Directors if he shall have attained 70 years of age at the date of election.
SECTION 2. The election of directors by the stockholders shall be by ballot or
other method as shall be adopted by the stockholders by resolution or motion
adopted at the stockholders' meeting.
<PAGE>
ARTICLE 4 (CONTINUED)
SECTION 3. A majority of the Board of Directors shall constitute a quorum for
the transaction of business; provided that the directors may, once in six
(6) months, designate by resolution nine (9) members, any five (5) of whom
shall constitute a quorum.
SECTION 4. Minutes of each meeting of the Board of Directors shall disclose the
date of such meeting, the names of directors present, and the reasons for the
absence of each director not in attendance; shall be subscribed by the presiding
officer; and shall be read and approved by the Board of Directors at the next
succeeding meeting, the minutes of which shall show such fact.
SECTION 5. A regular meeting of the Board of Directors shall be held at the
office of this Corporation in the City of Milwaukee at least once in each month
at such time as shall, from time to time, be designated by resolution of the
Board of Directors.
SECTION 6. Special meetings of the Board of Directors shall be held at the
general office of the Corporation in the City of Milwaukee or at such other
place in the City of Milwaukee as shall be designated, and may be called by
order of the Chairman of the Board, the President, or by any two of the
directors by mailing notice of such meeting and the designated time and place
thereof to each of the directors at his last known address two (2) days prior to
the holding of such meeting.
ARTICLE 5
SECTION 1. An Executive Committee consisting of the Chairman of the Board, the
President, and not less than six (6) or more than twelve (12) other directors
may be appointed by the Board of Directors to serve until their successors shall
be appointed, and such Executive Committee shall direct the management of the
affairs of this Corporation in the interim between meetings of the Board of
Directors, subject to the control of the Board. The Chairman of the Board, or
in his absence (through failure of the Board of Directors to elect a Chairman or
otherwise), the President, shall preside at meetings of the Executive Committee.
The person from time to time elected Secretary of the Board shall also serve as
Secretary of the Executive Committee.
SECTION 2. Meetings of the Executive Committee may be held at any time when the
Board of Directors is not in session, and may be prescribed by the Board of
Directors or may be called by order of the Chairman of the Board, the President,
or by any two (2) members of the Executive Committee, by mailing notice of such
meeting designating the time and place thereof, addressed to each member of the
Committee at his last known address two (2) days prior to the holding of such
meeting, or by personal notice thereof given a sufficient length of time before
such meeting to enable members to attend.
SECTION 3. The Executive Committee shall keep full and true minutes of all
business transacted at each meeting and shall submit its report together with a
copy of the minutes of its proceedings to the Board of Directors at its next
meeting thereafter.
SECTION 4. The Board of Directors may appoint an Investment Committee
consisting of at least two (2) officers and at least four (4) directors who are
not officers, which Committee shall have such duties and authority as the Board
of Directors shall from time to time prescribe. Members of such committee shall
serve for such periods as the Board shall from time to time prescribe.
<PAGE>
ARTICLE 5 (CONTINUED)
SECTION 5. The Board of Directors shall appoint a Loan Committee consisting of
three (3) or more directors, which shall meet at least once each month an shall
determine policies as to renewals and applications for new loans. All loans
shall be presented to the Loan Committee for approval, provided, however, that
the Board of Directors may by resolution designate officers who may make loans
without the prior approval of the Loan Committee but subject to the provisions
of the Wisconsin Statutes, the regulations of the Commissioner of Banks, and
these By-laws. Officers designated by the Board may not make unsecured loans in
an amount exceeding $10,000, or collateral loans in an amount exceeding $25,000.
No loans may be made in an amount exceeding the limits established from time to
time by the Board of Directors without securing a sworn financial statement
unless such loan is secured by collateral having a value in excess of the amount
of the loan.
SECTION 6. Each year the Board of Directors shall appoint, from among its
members or stockholders, an Examining Committee, which shall have such duties as
shall be prescribed by law.
SECTION 7. The Board of Directors shall have the power to set the banking hours
of this bank, subject to the provisions of the Wisconsin Statutes and the
regulations of the Commissioner of Banks. Certified copies of all resolutions
of the Board pertaining to banking hours shall be furnished to the State Banking
Department.
SECTION 8. A detailed statement of all current expenses and taxes paid shall be
presented to the Board in writing every month, or more often if required by the
Board.
ARTICLE 6
A written waiver signed by any director or member of any committee shall be the
equivalent of due notice to him of any meeting therein mentioned.
ARTICLE 7
Directors and members of committees appointed by the Board of Directors, except
directors or members who are salaried officers or employees of this Corporation,
shall be paid such fees for services and attendance at meetings as the Board of
Directors shall from time to time prescribe.
ARTICLE 8
SECTION 1. The general officers of the Corporation shall be a president, two or
more vice presidents, a cashier and one or more assistant cashiers, a secretary
and one or more assistant secretaries, one or more trust officers, and such
other officers as may be appropriate for the transaction of its business, each
of whom shall be elected by a viva voce vote of the Board of Directors, unless
objection thereto is made, whereupon such election shall be by ballot. The
Chairman of the Board, if there be one, the senior executive officer in charge
of conducting the business of this Corporation and the officer in charge of the
Trust Department of this Corporation shall be chosen from among the directors.
Each of said officers shall be elected for one year and until his successor has
been elected and qualified, unless sooner removed by the Board of Directors.
<PAGE>
ARTICLE 8 (CONTINUED)
SECTION 2. The Board of Directors shall have authority to define the duties and
obligations of all officers, to fix their compensation, to dismiss them at
pleasure, to fill vacancies in offices, and to require any officer to provide a
satisfactory bond for the faithful performance of his duties. Unless otherwise
prescribed by the Board of Directors, each officer shall have the duties and
authority prescribed by law or ordinarily incidental to his office in similar
corporations.
SECTION 3. The Board of Directors shall designate the officers to be the chief
executive officer in charge of the Trust Department of this Corporation. All
fiduciary powers of this Corporation shall be exercised through such officer who
shall be generally responsible for and supervise and direct the activities of
the Trust Department, and do and perform all acts and things necessary and
proper in carrying on the business of the Trust Department in accordance with
the provisions of applicable laws and regulations and the directions of the
Board of Directors, appropriate committees of the Board, and his superior
officers, and shall cause to be kept under his supervision books of account of
the transactions of this Corporation in a fiduciary capacity.
SECTION 4. The executive officers shall have authority to employ and discharge
all necessary agents and servants of this Corporation whose appointments shall
not be provided for by the Board, to define their duties, and to fix their
compensations.
ARTICLE 9
The Board of Directors may by resolution provide for this Corporation to
indemnify each director or officer, whether or not then in office, against all
expense and liability relating to a claim, action, suit, or proceeding against
him or to which he may be made a party by reason of his being or having been a
director or officer of this Corporation, or of any other company which he served
as a director of officer at the request of this Corporation, except in any case
where he was finally adjudged to have been derelict in the performance of his
duties as such director or officer. Such resolution may include provisions for
this Corporation (1) to assume or provide at its expense and risk the defense or
settlement of any section, (2) to purchase commercial insurance for the benefit
of a director or officer, including one adjudged guilty of negligence or
misconduct, and (3) to assume or share any additional expense or liability as
the Board of Directors deems warranted upon consideration of the circumstances.
ARTICLE 10
The Board of Directors may by resolution adopt emergency provisions to prevail
notwithstanding any contrary provisions of these By-laws, to take effect when a
state of emergency results in this Corporation being unable to continue its
normal functions under the direction of established management or at its regular
location (which provisions may include, but shall not be limited to procedures
for establishing temporary offices, an emergency executive committee, and
emergency officer succession).
ARTICLE 11
The shares of stock of this Corporation shall be transferable only on the books
of this Corporation upon surrender of the certificate issued therefor.
ARTICLE 12
These By-laws may be altered, amended, or repealed in whole or in part in any
manner not inconsistent with the provisions of law at any time by a vote of the
stockholders representing two-thirds of the capital stock, such a vote to be
taken at a general or special meeting, the notice whereof shall specify that it
is the intention to consider such amendment and shall contain a full statement
of the effect of the amendment proposed.
<PAGE>
EXHIBIT 6
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/ Gene E. Ploeger
---------------------------------------------
GENE E. PLOEGER, ASSISTANT VICE PRESIDENT
(Name and title)
By /s/ Yvonne Siira
---------------------------------------------
YVONNE SIIRA, ASSISTANT SECRETARY
(Name and title)
Dated: APRIL 29, 1996
<PAGE>
EXHIBIT 7
PUBLICATION COPY--COMMERCIAL AND SAVINGS BANKS
CONSOLIDATED REPORT OF CONDITION (Including Domestic and Foreign Subsidiaries)
STATE 035 (3/93)
- --------------------------------------------------------------------------------
LEGAL TITLE OF BANK STATE BANK NO.
12-99
------------------------------
Firstar Trust Company FEDERAL RESERVE DISTRICT NO.
7
- --------------------------------------------------------------------------------
CITY COUNTY STATE ZIP CODE CLOSE OF BUSINESS DATE
Milwaukee Milwaukee Wisconsin 53202 12/31/95
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
Mil Thou
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency and coin . . . . . 58 893 1.a.
b. Interest-bearing balances. . . . . . . . . . . . . . . . . . 0 1.b.
2. Securities
a. Held-to-maturity securities. . . . . . . . . . . . . . . . . 0 2.a.
b. Available-for-sale securities. . . . . . . . . . . . . . . . 31 640 2.b.
3. Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . 136 802 3.a.
b. Securities purchased under agreements to resell. . . . . . . 0 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income . . . . . . . . . . 13 192 4.a.
b. LESS: Allowance for loan and lease losses 73 4.b.
c. LESS: Allocated transfer risk reserve 0 4.c.
d. Loans and leases, net of unearned income, allowance, and reserve
(Item 4.a. minus 4.b. and 4.c.). . . . . . . . . . . . . . . 13 119 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . 0 5.
6. Premises and fixed assets (including capitalized leases). . . . . 1 150 6.
7. Other real estate owned . . . . . . . . . . . . . . . . . . . . . 0 7.
8. Investments in unconsolidated subsidiaries and associated companies 0 8.
9. Customers' liability to this bank on acceptances outstanding. . . 0 9.
10. Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . 0 10.
11. Other assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 067 11.
12. a. Total assets (sum of items 1 through 11) . . . . . . . . . . 252 671 12.a.
b. Loans deferred pursuant to 12 U.S.C. Section 1823(J) . . . . 0 12.b.
c. Total assets and losses deferred pursuant to 12 U.S.C.
Section 1823(J) (sum of items 12.a. and 12.b.) . . . . . . . 252 671 12.c.
LIABILITIES
13. Deposits:
a. In domestic offices. . . . . . . . . . . . . . . . . . . . . 226 252 13.a.
(1) Noninterest-bearing 141,374 . . . . . . . . . . . . . . 226 031 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . 221 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . 0 13.b.
(1) Noninterest-bearing . . . . . . . . . . . . . . . . . . 0 13.b.(1)
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . 0 13.b.(2)
14. a. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank
and of its Edge and Agreement subsidiaries . . . . . . . . . 580 14.a.
b. Securities sold under agreements to repurchase . . . . . . . 0 14.b.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . 0 15.a.
b. Trading liabilities. . . . . . . . . . . . . . . . . . . . . 0 15.b.
16. Other borrowed money
a. With original maturity of one year or less . . . . . . . . . 0 16.a.
b. With original maturity of more than one year . . . . . . . . 0 16.b.
17. Mortgage indebtedness and obligations under capitalized leases. . 0 17.
18. Bank's liability on acceptances executed and outstanding. . . . . 0 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . . . 0 19.
20. Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . 7 788 20.
21. Total liabilities (sum of items 13 through 20). . . . . . . . . . 234 620 21.
22. Limited-life preferred stock and related surplus. . . . . . . . . 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus
(Number of shares outstanding)...................None). . . . . . 0 23.
24. Common stock (Number of shares
a. Authorized..................................10,000 . . . . .
b. Outstanding ................................10,000). . . . . 1 000 24.
25. Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 141 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . 4 409 26.a.
b. Unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . 501 26.b.
27. Cumulative foreign currency translation adjustments . . . . . . . 0
28. a. Total equity capital (sum of items 23 through 27). . . . . . 18 051 28.a.
b. Losses deferred pursuant to 12 U.S.C. Section 1823(J). . . . 0 28.b.
c. Total equity capital and losses deferred pursuant to
12 U.S.C. Section 1823 (J) (sum of items 28.a. and 28.b.). . 18 051 28.c.
29. Total liabilities, limited-life preferred stock, equity
capital, and losses deferred pursuant to 12 U.S.C.
Section 1823(J) (sum of items 21, 22, and 28.c.). . . . . . . . . 252 671 29.
- ----------------------------------------------------------------------------------------------------
MEMO
MEMORANDA: Amounts outstanding as of Report of Condition date:
1.a. Standby letter of credit. Total . . . . . . . . . . . . . . None 1.a.
1.b. Amount of Standby letters of credit in memo 1.a. conveyed to
others through participations. . . . . . . . . . . . . . . . None 1.b.
- ----------------------------------------------------------------------------------------------------
</TABLE>
NOTE: This report must be signed by an authorized officer(s) and attested by
not less than three directors other than the officer(s) signing the report.
- --------------------------------------------------------------------------------
I/We, the undersigned officer(s), do hereby declare that this Report of
Condition has been prepared in conformance with official instructions and is
true and correct to the best of my (our) knowledge and belief.
- --------------------------------------------------------------------------------
SIGNATURE OF OFFICER(S) AUTHORIZED TO SIGN REPORT DATE SIGNED
James D. Hintz Jan 26, 1994
- --------------------------------------------------------------------------------
NAME(S) AND TITLES(S) OF OFFICER(S) AREA CODE/PHONE NO.
AUTHORIZED TO SIGN REPORT 414 765-5295
James D. Hintz, First Vice President and Cashier
- --------------------------------------------------------------------------------
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with official instructions
and is true and correct.
- --------------------------------------------------------------------------------
SIGNATURE OF DIRECTOR SIGNATURE OF DIRECTOR SIGNATURE OF DIRECTOR
Blaine E. Rieke Robert L. Webster ---------------------------
- --------------------------------------------------------------------------------
(MAKE MARK FOR State of Wisconsin County of Milwaukee
NOTARY'S SEAL) Sworn to and subscribed before me this 27th day of January
1994 and I hereby certify that I am not an officer or director
of this bank.
Diane M. Rampacek
Signature Notary Public
My commission expires 1-3 1999
