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REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NORTHERN STATES POWER COMPANY
(Exact name of registrant as specified in its charter)
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WISCONSIN 39-0508315
(State or other (I.R.S. Employer
jurisdiction of Identification
incorporation or No.)
organization)
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P.O. BOX 8, EAU CLAIRE, WISCONSIN 54702
(715) 839-1382
(Address, including zip code, and telephone number, including
area code, of principal executive offices)
JEROME L. LARSEN JOHN D. WILSON
President and Chief Executive Officer Vice President-Regulatory Affairs and
Northern States Power Company General Counsel
P.O. Box 8 Northern States Power Company
Eau Claire, Wisconsin 54702 P.O. Box 8
(715) 839-2578 Eau Claire, Wisconsin 54702
(715) 836-1131
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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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.
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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. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
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Debt Securities............................ $80,000,000 100%(1) $80,000,000 $22,240(2)
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(1) Estimated solely for the purpose of determining the registration fee.
(2) Calculated pursuant to Rule 457(o).
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, 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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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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SUBJECT TO COMPLETION DATED AUGUST 16, 1999
PROSPECTUS
[LOGO]
NORTHERN STATES POWER COMPANY
(a Wisconsin corporation)
100 North Barstow Street
P.O. Box 8
Eau Claire, Wisconsin 54703
(715) 830-2621
DEBT SECURITIES
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We may offer for sale from time to time up to $80,000,000 aggregate
principal amount of our unsecured debt securities (the "Securities"). We may
sell the Securities in one or more series through (i) underwriters or dealers,
(ii) directly to a limited number of institutional purchasers, or (iii) agents.
See "Plan of Distribution." The particular type of security being sold as well
as the amount and terms of the sale of such Securities will be determined at the
time of sale and included in a prospectus supplement that will accompany this
Prospectus. Such Prospectus Supplement will include if applicable:
- The names of any underwriters, dealers or agents involved in the
distribution of the Securities;
- Any applicable commissions or discounts and the net proceeds to the
Company from such sale;
- The aggregate principal amount and offering price of the Securities;
- The rate or rates (or method of calculation) of interest;
- The time or times and place of payment of interest;
- The maturity date or dates; and
- Any redemption terms or other specific terms of such series of Securities.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS , 1999.
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ABOUT THIS PROSPECTUS
This Prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may,
over the next two years, sell up to a total dollar amount of $80,000,000 of the
Securities described in this prospectus in one or more offerings. This
Prospectus provides you with a general description of the Securities we may
offer. Each time we sell Securities, we will provide a Prospectus Supplement
that will contain specific information about the terms of that offering. The
Prospectus Supplement may also add, update or change information contained in
this Prospectus. You should read both this Prospectus and any Prospectus
Supplement together with additional information described under the heading
"WHERE YOU CAN FIND MORE INFORMATION."
We believe we have included all information material to investors but
certain details that may be important for specific investment purposes have not
been included. To see more detail, you should read the exhibits filed with this
registration statement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the Company's Annual Report on Form 10-K for the year ended December
31, 1998, the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999 and June 30, 1999 and any future filing made with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until
we sell all of the Securities.
We are not required to, and do not, provide annual reports to holders of our
Securities unless specifically requested by a holder.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Treasurer
Northern States Power Company
P.O. Box 8
Eau Claire, Wisconsin 54702
(712) 839-1382
You should rely only on the information incorporated by reference or
provided in this Prospectus or any Prospectus Supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these Securities in any state where the offer is not permitted. You
should not assume that the information in this Prospectus or any Prospectus
Supplement is accurate as of any date other than the date on the front of those
documents.
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[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 54703 (Phone: (715) 839-1382). We are a wholly-owned
subsidiary of Northern States Power Company, a Minnesota corporation
("NSP-Minnesota").
We are engaged in the generation, transmission, and distribution of
electricity to approximately 210,000 retail customers in an area of
approximately 18,900 square miles in northwestern Wisconsin, to approximately
9,100 electric retail customers in an area of approximately 300 square miles in
the western portion of the Upper Peninsula of Michigan, and to ten wholesale
customers in the same general area. We are also engaged in the distribution and
sale of natural gas in the same service territory to approximately 78,000
customers in Wisconsin and 5,000 customers in Michigan.
In 1998, we derived 83 percent of our total operating revenues from our
electric utility operations and 17 percent from our gas utility operations. As
of December 31, 1998, we had 955 full-time equivalent employees including 863
full-time employees.
PROPOSED MERGER
On March 24, 1999, NSP-Minnesota and New Century Energies, Inc., a Delaware
corporation ("NCE"), entered into an Agreement and Plan of Merger (the "Merger
Agreement") providing for a strategic business combination of NCE and
NSP-Minnesota. Pursuant to the Merger Agreement, NCE will be merged with and
into NSP-Minnesota with NSP-Minnesota as the surviving corporation in the Merger
(the "Merger").
The Merger was approved by the shareholders of both NSP-Minnesota and NCE on
June 28, 1999. Consummation of the Merger is subject to certain closing
conditions, including, among others, approval or regulatory review by certain
state utilities regulators, the Securities and Exchange Commission under the
Public Utility Holding Company Act of 1935, as amended, the Federal Energy
Regulatory Commission, the Nuclear Regulatory Commission, the Federal
Communications Commission and expiration or termination of the waiting period
applicable to the Merger under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended. In July 1999, NSP-Minnesota and NCE filed merger
applications in Minnesota, North Dakota, Colorado, Wyoming, Texas, New Mexico,
Kansas and at the FERC. Each of NCE and NSP-Minnesota have agreed to certain
undertakings and limitations regarding the conduct of their businesses prior to
the closing of the transaction. Upon completion of the Merger, NSP-Minnesota
will register as a holding company under the Public Utility Holding Company Act
of 1935. The Merger is expected to take from 12 to 18 months from the date of
announcement to complete.
Following the completion of the Merger, the Securities and our other
outstanding debt will be unaffected and remain our exclusive obligations, and
not become obligations of NSP-Minnesota or any other subsidiary of
NSP-Minnesota.
USE OF PROCEEDS
We will add the net proceeds from the sale of the Securities to our general
funds and use such proceeds for general corporate purposes, which may include
the payment at maturity or the redemption, refunding, refinancing or purchase of
one or more series of outstanding first mortgage bonds, and the repayment of
outstanding short-term borrowings incurred in connection with our continuing
construction program. Our short-term borrowings aggregated $40.4 million as of
June 30, 1999. The specific allocation of the proceeds of a particular series of
the Securities will be described in the Prospectus Supplement.
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RATIO OF EARNINGS TO FIXED CHARGES
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12 MONTHS YEAR ENDED DECEMBER 31,
ENDED --------------------------------
JUNE 30, 1999 1998 1997 1996 1995 1994
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Ratio of Earning to Fixed Charges....... 4.1 3.7 4.4 4.3 4.2 4.2
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For purposes of computing the ratio of earnings to fixed charges, (i)
earnings consist of income from continuing operations 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 annual interest requirement on long-term debt of the Company outstanding
at June 30, 1999, was $16,179,000.
DESCRIPTION OF SECURITIES
GENERAL
This description of the Securities summarizes selected provisions of the
indenture under which the Securities will be issued. This summary is not
complete. The form of the indenture has been filed as an exhibit to the
registration statement and you should read the indenture for provisions that may
be important to you. In this summary below, we have included references to
section numbers of the indenture so that you can easily locate these provisions.
Capitalized terms used in the summary have the meanings specified in the
indenture.
We are not required to issue future issues of debt securities under the
indenture described in this Prospectus, and we are free to use other indentures
or documentation, containing provisions different from those described in this
Prospectus, in connection with future issues of other debt securities.
The Securities may be issued in one or more new series under an indenture
(the "Indenture") between the Company and Firstar Bank Milwaukee, National
Association, or any other trustee to be named, as trustee (the "Trustee"). The
Securities will be unsecured obligations of the Company and will rank on a
parity with other unsecured indebtedness of the Company and will be effectively
subordinated to all our secured debt, including our first mortgage bonds. At
June 30, 1999, we had outstanding $215 million of first mortgage bonds. The
amount of Securities that we may issue under the Indenture is not limited.
The Securities may be issued in one or more series, may be issued at various
times, may have differing maturity dates and may bear interest at differing
rates. The Prospectus Supplement applicable to each issue of Securities will
specify:
- the title, aggregate principal amount and offering price of such
Securities;
- the interest rate or rates, or method of calculation of such rate or
rates, on such Securities, and the date from which such interest will
accrue;
- the dates on which such interest will be payable;
- the record dates for payments of interest;
- the date on which such Securities will mature;
- any redemption terms;
- the period or periods within which, the price or prices at which and the
terms and conditions upon which such Securities may be repaid, in whole or
in part, at the option of the holder thereof; and
- other specific terms applicable to such Securities.
The applicable Prospectus Supplement also may describe certain special
United States federal income tax considerations (if any) applicable to
Securities sold at an original issue discount and certain special
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United States federal income tax or other considerations (if any) applicable to
any Securities which are denominated in a currency or currency unit other than
United States dollars.
The Securities will be represented either by Global Securities registered in
the name of The Depository Trust Company ("DTC"), as depository ("Depository"),
or its nominee, or by securities in certificate form issued to the registered
owners, as set forth in the applicable Prospectus Supplement. See "Book-Entry
System" herein.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Securities will be denominated in United States currency in minimum
denominations of $1,000 and integral multiples thereof.
Unless otherwise indicated in the applicable Prospectus Supplement, there
are no provisions in the Indenture or the Securities that require us to redeem,
or permit the holders to cause a redemption of, the Securities or that otherwise
protect the holders in the event that we incur substantial additional
indebtedness, whether or not in connection with a change in control of the
Company. However, any change in control transaction that involves the incurrence
of substantial additional long-term indebtedness (as Securities, first mortgage
bonds or otherwise) by us in such a transaction would require approval of state
utility regulatory authorities and, possibly, of federal utility regulatory
authorities. Management believes that such approval would be unlikely in any
transaction that would result in the Company, or a successor to the Company,
having a highly leveraged capital structure.
REGISTRATION TRANSFER AND EXCHANGE
Securities of any series may be exchanged for other Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and kind. (Section 2.6.)
Unless otherwise indicated in the applicable Prospectus Supplement,
Securities may be presented for registration of transfer (duly endorsed or
accompanied by a duly executed written instrument of transfer), at the office of
the Trustee maintained for such purpose with respect to any series of Securities
and referred to in the applicable Prospectus Supplement, without service charge
and upon payment of any taxes and other governmental charges as described in the
Indenture. Such transfer or exchange will be effected upon being satisfied with
the documents of title and indemnity of the person making the request. (Sections
2.6 and 2.7.)
In the event of any redemption of Securities of any series, the Trustee will
not be required to exchange or register a transfer of any Securities of such
series selected, called or being called for redemption except, in the case of
any Security to be redeemed in part, the portion thereof not to be so redeemed.
(Section 2.6.) See "BOOK-ENTRY SYSTEM."
PAYMENT AND PAYING AGENTS
Principal of and interest and premium, if any, on Securities issued in the
form of Global Securities will be paid in the manner described below under the
caption "BOOK-ENTRY SYSTEM." Unless otherwise indicated in the applicable
Prospectus Supplement, interest on Securities that are in the form of
certificated securities will be paid by check mailed to the holder at such
person's address as it appears in the register for the Securities maintained by
the Trustee; however, a holder of $10,000,000 or more Securities having the same
interest payment dates will be entitled to receive payments of interest by wire
transfer, if appropriate wire transfer instructions have been received by the
Trustee on or prior to the applicable record date. (Section 2.12.) Unless
otherwise indicated in the applicable Prospectus Supplement, the principal of,
and interest at maturity and premium, if any, on Securities in the form of
certificated securities will be payable in immediately available funds at the
office of the Trustee. (Section 2.12.)
All monies paid by the Company to a paying agent for the payment of
principal of, interest or premium, if any, on any Security which remain
unclaimed at the end of two years after such principal, interest or premium
shall have become due and payable will be repaid to the Company and the holder
of such Security will thereafter look only to the Company for payment thereof.
(Section 4.4.)
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EVENTS OF DEFAULT
The following constitute events of default under the Indenture:
- default in the payment of principal of and premium, if any, on any
Security when due and payable which continues for five days;
- default in the payment of interest on any Security when due which
continues for 30 days;
- default in the performance or breach of any other covenant or warranty of
the Company in the Indenture and the continuation thereof for 90 days
after written notice to the Company as provided in the Indenture; and
- certain events of bankruptcy, insolvency or reorganization of the Company.
(Section 7.1.)
If an event of default occurs and is continuing, either the Trustee or the
holders of a majority in principal amount of the outstanding Securities may
declare the principal amount of all Securities to be due and payable
immediately. At any time after an acceleration of the Securities has been
declared, but before a judgment or decree of the immediate payment of the
principal amount of the Securities has been obtained, if the Company pays or
deposits with the Trustee a sum sufficient to pay all matured installments of
interest and the principal and any premium which has become due otherwise than
by acceleration and all defaults shall have been cured or waived, then such
payment or deposit will cause an automatic rescission and annulment of the
acceleration of the Securities. (Section 7.1.)
The Trustee generally will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
holders unless such holders have offered acceptable indemnity to the Trustee.
(Section 8.2.) The holders of a majority in principal amount of the outstanding
Securities generally will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or of
exercising any trust or power conferred on the Trustee, with respect to the
Securities. (Section 7.7.) Each holder of any Security has the right to
institute a proceeding with respect to the Indenture, but such right is subject
to certain conditions precedent specified in the Indenture. (Section 7.7.) The
Indenture provides that the Trustee, within 90 days after the occurrence of a
default with respect to the Securities, is required to give the holders of the
Securities notice of such default, unless cured or waived, but, except in the
case of default in the payment of principal of, or premium, if any, or interest
on any Securities, the Trustee may withhold such notice if it determines in good
faith that it is in the interest of such holders to do so. (Section 7.8.) The
Company is required to deliver to the Trustee each year a certificate as to
whether or not, to the knowledge of the officers signing such certificate, the
Company is in compliance with the conditions and covenants under the Indenture.
(Section 5.5.)
MODIFICATION
The Company and the Trustee may modify and amend the Indenture with the
consent of the holders of a majority in principal amount of the outstanding
Securities affected thereby, provided that no such modification or amendment
may, without the consent of the holder of each outstanding Security affected
thereby, (a) change the stated maturity of any installment of principal of, or
interest on, any Security or any premium payable on the redemption thereof, or
change the redemption price; (b) reduce the principal amount of, or the interest
or premium payable on, any Security or reduce the amount of principal that could
be declared due and payable prior to the stated maturity; (c) change the coin or
currency of any payment of principal of, or any premium or interest on, any
Security; (d) impair the right of a holder to institute suit for the enforcement
of any payment on or with respect to any Security; (e) reduce the percentage in
principal amount of outstanding Securities, the consent of the holders of which
is required to modify or amend the Indenture; or (f) modify the foregoing
requirements or reduce the percentage of outstanding Securities necessary to
waive any past default to less than a majority. The Company and the Trustee may
modify and amend the Indenture without the consent of the holders (a) to add to
the covenants of the Company for the benefit of the holders or to surrender a
right conferred on the Company
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in the Indenture; (b) to add security for the Securities; or (c) to make certain
other modifications, generally of a ministerial or immaterial nature. (Sections
12.1 and 12.2.)
DEFEASANCE AND DISCHARGE
We may be discharged from all obligations in respect to the Securities and
the Indenture (except for certain obligations such as obligations to register
the transfer or exchange of Securities, replace stolen, lost or mutilated
Securities and maintain paying agencies) if we irrevocably deposit with the
Trustee, in trust for the benefit of holders of Securities, money or United
States government obligations (or any combination thereof) which will provide
enough money to make all payments of principal of, and any premium and interest
on, the Securities on the dates such payments are due. In order to discharge
such obligations, we must deliver to the Trustee an opinion of counsel to the
effect that the holders of the Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance or discharge
of the Indenture. Upon any discharge of our obligations as described above, the
holders of Securities must look only to such trust fund, and not us, for
payments on the Securities. (Section 4.1.)
CONSOLIDATION, MERGER AND SALE OF ASSETS
We will not merge into any other corporation or sell or otherwise transfer
all or substantially all our assets unless (i) the successor or transferee
corporation assumes by supplemental indenture our obligations to pay the
principal and premium and interest on all the Securities and our obligation to
perform every covenant of the Indenture to be performed or observed by the
Company and (ii) we or the successor or transferee corporation, as applicable,
are not immediately following such merger, sale or transfer in default in the
performance of any such covenant. Upon any such merger, sale or transfer of all
or substantially all of the assets of the Company, the successor or transferee
corporation will succeed to, and be substituted for, and may exercise every
right and power of, the Company under the Indenture with the same effect as if
such successor corporation had been named as the Company therein and the Company
will be released from all obligations under the Indenture. The Indenture defines
all or substantially all of the assets of the Company as being 50% or more of
the total assets of the Company as shown on the balance sheet of the Company as
of the end of the prior year and specifically permits any such sale, transfer or
conveyance during a calendar year of less than 50% of total assets without the
consent of the holders of the Securities. (Sections 11.1 and 11.2.)
RESIGNATION OR REMOVAL OF TRUSTEE
The Trustee may resign at any time by notifying the Company in writing and
specifying the day upon which the resignation is to take effect. Such
resignation will not take effect, however, until a successor trustee has been
appointed. (Section 8.10.)
The holders of a majority in principal amount of the outstanding Securities
may remove the Trustee at any time. In addition, so long as no event of default
or event which, with the giving of notice or lapse of time or both, would become
an event of default has occurred and is continuing, we may remove the Trustee
upon notice to the holder of each Security outstanding, and appointment of a
successor Trustee. (Section 8.10.)
CONCERNING THE TRUSTEE
Firstar Bank Milwaukee, National Association is the Trustee. We maintain
banking relationships with the Trustee in the ordinary course of business. The
Trustee also acts as trustee for our first mortgage bonds.
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BOOK-ENTRY SYSTEM
Each series of Securities may be issued in the form of one or more Global
Securities representing all or part of such series of Securities. This means
that we will not issue certificates for such series of Securities to the
holders. Instead a Global Security representing such series will be deposited
with, or on behalf of, The Depository Trust Company ("DTC"), or its successor as
depository (the "Depository") and registered in the name of the Depository or a
nominee of the Depository.
The Depository will keep a computerized record of its participants (for
example, your broker) whose clients have purchased the Securities. Unless it is
exchanged in whole or in part for a certificated Security, a Global Security may
not be transferred, except that the Depository, its nominees and their
successors may transfer a Global Security as a whole to one another.
Beneficial interests in Global Securities will be shown on, and transfers of
interests will be made only through, records maintained by the Depository and
its participants. The laws of some jurisdictions require that certain purchasers
take physical delivery of securities in definitive form. These laws may impair
the ability to transfer beneficial interests in a Global Security.
We will wire principal, interest and any premium payments to the Depository
or its nominee. We and the trustee will treat the Depository or its nominee as
the owner of the Global Security for all purposes, including any notices and
voting. Accordingly, we, the trustee and any paying agent will have no direct
responsibility or liability to pay amounts due on a Global Security to owners of
beneficial interests in a Global Security.
Unless otherwise specified in the Prospectus Supplement, DTC will act as
Depository for those Securities issued as Global Securities. The Securities will
be registered in the name of Cede & Co. (DTC's partnership nominee).
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds Securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts. This
eliminates the need for physical movement of securities certificates. Direct
Participants include Securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a direct Participant, either directly or
indirectly. The rules that apply to DTC and its Participants are on file with
the SEC.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit Participants' accounts on the payment date according to
their respective holdings of beneficial interests in the Global Security as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to Participants whose accounts are credited with
Securities on a record date, by using an omnibus proxy. Payments by Participants
to owners of beneficial interests in a Global Security, and voting by
Participants, will be governed by the customary practices between the
Participants and owners of beneficial interests, as is the case with securities
held for the account of customers registered in "street name." However, payments
will be the responsibility of the Participants and not our responsibility or
that of DTC or the trustee.
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Securities represented by a Global Security will be exchangeable for
certificated Securities with the same terms in authorized denominations only if:
(a) DTC notifies us that it is unwilling or unable to continue as Depository
or if DTC ceases to be a clearing agency registered under applicable law
and a successor Depository is not appointed by us within 90 days; or
(b) we determine not to require all of the Securities of a series to be
represented by a Global Security and notify the trustee of our decision.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from DTC, and the Company and any underwriters, dealers or
agents take no responsibility for the accuracy thereof.
Any underwriters, dealers or agents of any Securities may be Direct
Participants of DTC.
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LEGAL OPINIONS
Legal opinions relating to the Securities will be rendered by John D.
Wilson, P.O. Box 8, 100 North Barstow Street, Eau Claire, Wisconsin 54702,
General 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 their opinions. Gardner, Carton & Douglas has acted from
time to time as special counsel for the Company and NSP-Minnesota in connection
with certain matters, including the proposed Merger with New Century Energies.
EXPERTS
The consolidated financial statements of the Company as of December 31, 1998
and 1997 and for each of the three years in the period ended December 31, 1998
incorporated in this Prospectus by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1998, have been so incorporated in
reliance upon the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
PLAN OF DISTRIBUTION
The Company intends to sell the Securities to or through underwriters or
dealers, and may also sell the Securities directly to other purchasers or
through agents, as described in the Prospectus Supplement relating to an issue
of Securities.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices.
In connection with the sale of the Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they may
act as agents in the form of discounts, concessions, or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions, or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers, and agents that participate in the distribution
of Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933 (the "1933 Act"). Any such person who may be deemed to be
an underwriter will be identified, and any such compensation received from the
Company will be described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers, and agents who participate in the distribution of the Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the 1933 Act.
No person has been authorized to give any information or to make any
representation not contained in this Prospectus and, if given or made, such
information or representation must not be relied upon as having been authorized.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any of the Securities offered hereby in any jurisdiction to any
person to whom it is unlawful to make such offer in such jurisdiction. Neither
the delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information herein is correct as
of any time subsequent to the date hereof or that there has been no change in
the affairs of the Company since such date.
9
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS
OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE SUCH DATE.
------------------------
NORTHERN STATES POWER COMPANY
(A WISCONSIN CORPORATION)
DEBT SECURITIES
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C>
ABOUT THIS PROSPECTUS..................................................................................... 1
WHERE YOU CAN FIND MORE INFORMATION....................................................................... 1
NSP....................................................................................................... 2
PROPOSED MERGER........................................................................................... 2
USE OF PROCEEDS........................................................................................... 2
RATIO OF EARNINGS TO FIXED CHARGES........................................................................ 3
DESCRIPTION OF SECURITIES................................................................................. 3
BOOK-ENTRY SYSTEM......................................................................................... 7
LEGAL OPINIONS............................................................................................ 9
EXPERTS................................................................................................... 9
PLAN OF DISTRIBUTION...................................................................................... 9
</TABLE>
<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 Securities:
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933......................... $ 22,240
Fee of Public Service Commission of Wisconsin............................. 1,000
Fees of Rating Agencies................................................... 30,000
Printing and engraving.................................................... 25,000
Accounting services....................................................... 30,000
Trustee's charges......................................................... 1,500
Expenses and counsel fees for qualification or registration of the
Securities
under state securities laws............................................. 10,000
Miscellaneous, including traveling, telephone, copying, shipping,
postage, and other out-of-pocket expenses............................... 10,000
Total................................................................. $ 129,740
</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 NSP-Minnesota.
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ----------- --------------------------------------------------------------------------------------------------
<S> <C>
1.01 Form of Underwriting Agreement relating to the Securities.
*4.01A(a) Copy of Trust Indenture, dated April 1, 1947, from the Company to Firstar Bank Milwaukee, National
Association (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 Copy of Supplemental Trust Indenture, dated December 1, 1996, 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 December 12, 1996, and incorporated herein by reference.
4.01P Form of Indenture from the Company to Firstar Bank Milwaukee, National Association
5.01 Opinion of John D. Wilson, Esq., as to legality of the Securities.
12.01 Computation of ratio of earnings to fixed charges.
23.01 Consent of Independent Public Accountants--PricewaterhouseCoopers LLP.
23.02 Consent of Legal Counsel.
24.01 Powers of Attorney.
25.01 Form T-1 Statement of Eligibility of Firstar Bank Milwaukee, National Association to act as
Trustee under the Indenture that will secure the Securities.
</TABLE>
II-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 purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-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 13th day
of August 1999.
<TABLE>
<S> <C> <C>
NORTHERN STATES POWER COMPANY
By: /s/ ROGER D. SANDEEN
-----------------------------------------
Roger D. Sandeen
VICE PRESIDENT, TREASURER AND CONTROLLER
</TABLE>
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
*
- ------------------------------ Principal Executive August 13, 1999
Jerome L. Larsen Officer and Director
PRESIDENT AND CHIEF EXECUTIVE
*
- ------------------------------ Principal Financial and August 13, 1999
Roger D. Sandeen Accounting Officer
VICE PRESIDENT, TREASURER AND
CONTROLLER
*
- ------------------------------ Director August 13, 1999
H. Lyman Bretting
*
- ------------------------------ Director August 13, 1999
Ray A. Larson, Jr.
*
- ------------------------------ Director August 13, 1999
Larry G. Schnack
*
- ------------------------------ Director August 13, 1999
Loren L. Taylor
*
- ------------------------------ Director August 13, 1999
P.M. Gelatt
</TABLE>
<TABLE>
<S> <C> <C> <C>
By: /s/ ROGER D. SANDEEN
-------------------------
Roger D. Sandeen August 13, 1999
(ATTORNEY-IN-FACT)
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
METHOD OF
EXHIBIT NUMBER DESCRIPTION FILING
- --------------- ------------------------------------------------------------------------------------- -------------
<C> <S> <C>
1.01 Form of Underwriting Agreement relating to the Securities. DT
*4.01A (a) Copy of Trust Indenture, dated April 1, 1947, from the Company to Firstar Bank
Milwaukee, National Association (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 Copy of Supplemental Trust Indenture, dated December 1, 1996, 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 December 12, 1996, and incorporated
herein by reference.
4.01P Form of Indenture from the Company to Firstar Bank Milwaukee, National Association. DT
5.01 Opinion of John D. Wilson, Esq., as to legality of the Securities. DT
12.01 Computation of ratio of earnings to fixed charges. DT
23.01 Consent of Independent Public Accountants--PricewaterhouseCoopers LLP. DT
23.02 Consent of Legal Counsel. DT
24.01 Powers of Attorney. DT
25.01 Form T-1 Statement of Eligibility of Firstar Bank Milwaukee, National Association to DT
act as Trustee under the Indenture that will secure the Securities.
</TABLE>
DT--Filed electronically with this direct transmission
<PAGE>
EXHIBIT 1.01
Form of August 13, 1999
NORTHERN STATES POWER COMPANY
(A WISCONSIN CORPORATION)
DEBT SECURITIES
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 Debt Securities of the designation, with the terms and
in the aggregate principal amount specified in Schedule I hereto (the "Debt
Securities") to be issued under its Indenture, dated as of _____ __, 1999, from
the Company to Firstar Bank Milwaukee, National Association, as trustee (the
"Trustee"), as to be supplemented and amended by a supplemental indenture
relating to the Debt Securities (such Indenture 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 Debt Securities, 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 Debt Securities pursuant to Rule 424
and/or Rule 434 under the Act. Copies of such registration statement
and prospectus, any such
<PAGE>
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 Debt Securities by the Underwriters, which documents are
deemed to be incorporated by 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
2
<PAGE>
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) PricewaterhouseCoopers LLP, which audited certain of
the financial statements incorporated by reference in the Registration
Statement, are 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 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
3
<PAGE>
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 Debt Securities,
the consummation of the transactions herein contemplated, the
fulfillment of the terms hereof, nor compliance with the terms and
provisions of this Agreement, the Debt Securities 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 Debt Securities 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 Debt Securities 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
Debt Securities 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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<PAGE>
(m) The Company has good and valid title to all real and
fixed property and leasehold rights which are owned by it, subject only
to taxes and assessments not yet delinquent; the lien of the
Supplemental and Restated Trust Indenture dated March 1, 1991, from the
Company to Firstar Trust Company (the "First Mortgage Indenture"); 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, and
certain minor defects in titles which are not material, and 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 First Mortgage Indenture; and
any real property and buildings held under lease by the Company is held
by it under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company.
(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(w) 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
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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 Debt Securities set forth opposite their respective
names in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Debt
Securities 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 Debt Securities 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 Debt Securities will be delivered in definitive
registered form except that, if for any reason the Company is unable to deliver
the Debt Securities in definitive form, the Company reserves the right, as
provided in the Indenture, to make delivery in temporary form. Any Debt
Securities delivered in temporary form will be exchangeable without charge for
Debt Securities in definitive form. The Debt Securities 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 Debt Securities are to be registered and the
principal amounts thereof (which shall in each case be a multiple of $1,000) the
Company will deliver the Debt Securities so registered. The Debt Securities 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 Debt Securities 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
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<PAGE>
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
Debt Securities 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 in 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
Debt Securities 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 Debt Securities;
PROVIDED that the Company shall not be required to qualify to do
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.
7
<PAGE>
(f) So long as the Debt Securities 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 Debt Securities 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 Debt
Securities 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 Debt Securities for
investment by institutional investors and the rating of the Debt Securities, 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 Debt Securities 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 Debt
Securities 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.
8
<PAGE>
(b) The Representatives shall be furnished with opinions,
dated the Closing Date, of John D. Wilson, General Counsel and
Secretary of the Company, substantially in the form included as Exhibit
A.
(c) The Representations 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 Debt Securities, 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.
(d) The Company shall have furnished to the Underwriters
the opinion of ________________ 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 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
(iii) 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 Debt Securities 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 representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect
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<PAGE>
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 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
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<PAGE>
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 Debt Securities 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 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,
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<PAGE>
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
Debt Securities 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 Debt Securities 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 (1) 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.
12
<PAGE>
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Debt Securities 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 Debt Securities.
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 Debt
Securities 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 liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of 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) from whom the person asserting any such loss, claim, damage or
liability purchased the Debt Securities 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 Debt Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in 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
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<PAGE>
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 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 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 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
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<PAGE>
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 Debt Securities. 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 Debt Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of 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.
(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
15
<PAGE>
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 Debt Securities which it has agreed to
purchase hereunder (in this Section called "Unpurchased Debt Securities"), the
Representatives may in their discretion arrange for themselves or any party or
other parties to purchase such Unpurchased Debt Securities 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 Debt Securities, 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 Debt
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Unpurchased Debt Securities, the Representatives or the
Company shall have the right to postpone the Closing Date for such Unpurchased
Debt Securities 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 Debt Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Unpurchased Debt Securities 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
Debt Securities which remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of the Debt Securities, then the
Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Debt Securities 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 Debt Securities which such Underwriter
agreed to purchase hereunder) of the Unpurchased Debt Securities 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 Debt Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in
paragraph (a) above, the aggregate principal amount of Unpurchased Debt
Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Debt Securities, 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 Debt
16
<PAGE>
Securities 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 Debt Securities, 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 there
shall have occurred any outbreak or escalation 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 Debt Securities on the terms and in the manner
contemplated in the Prospectus.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to 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
Debt Securities. 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
<PAGE>
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 office in Washington D.C. is open for business.
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.
18
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 333-
Representatives and Addresses:
Debt Securities:
Designation: Debt Securities, 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.
Redemption Terms:
Payment to be made in federal (same day) funds. Yes No
---- ----
Closing Date and Location:
Office for Delivery of Debt Securities:
Office for Payment of Debt Securities:
Office for Checking of Debt Securities:
19
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
NAME OF UNDERWRITER PRINCIPAL
------------------- AMOUNT OF
DEBT SECURITIES
---------------
<S> <C>
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . $
===========
</TABLE>
20
<PAGE>
EXHIBIT A
FORM OF OPINION OF JOHN D. WILSON
RE: $ ,000,000 PRINCIPAL AMOUNT OF DEBT SECURITIES, 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 $ principal amount of Debt Securities, Series due , % herein
called the "Debt Securities." In connection therewith, I have participated in
the preparation of the proceedings for the issuance and sale of the Debt
Securities, including the Underwriting Agreement dated (the "Underwriting
Agreement") between you and the Company relating to your purchase of the Debt
Securities, and have either participated in the preparation of or examined
the Indenture dated _____ __, 1999 and the Supplemental Indenture dated as of
, creating the Debt Securities, all from the Company to Firstar Bank
Milwaukee, National Association, as Debt Trustee (which Indenture and
Supplemental Indenture 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 Debt Securities. 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(w) of Regulation S-X
under the Act; and has corporate power, right, and authority to make
the Indenture and issue and sell the Debt Securities;
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
<PAGE>
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
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting enforcement of creditor's rights;
5. The issuance of the Debt Securities 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 Securities" in the Prospectus and "Supplemental
Description of Securities" in the Prospectus Supplement, 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 Debt Securities are in due legal form,
constitute legal, valid, and binding obligations of the Company, and
are enforceable in accordance with their terms;
6. 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 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;
7. 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 Debt Securities; 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 Debt Securities by the Company to you
as provided in the Underwriting Agreement, except as may be required by
"blue sky" or state securities laws;
8. 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)
2
<PAGE>
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;
9. 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;
10. The Company has all necessary power under statutory
provisions and permits to use its operating electric and gas
properties; and
11. All statements contained in the Registration
Statement and Prospectus purporting to set forth my opinion or to be
based upon 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 8 and 11 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.
Respectfully submitted,
By
--------------------------------------
John D. Wilson
Vice President-Regulatory Affairs and
General Counsel
3
<PAGE>
EXHIBIT 4.01P
FORM OF AUGUST 13, 1999
=====================
NORTHERN STATES POWER COMPANY
(A WISCONSIN CORPORATION)
AND
FIRSTAR BANK MILWAUKEE, NATIONAL ASSOCIATION
TRUSTEE
---------
INDENTURE
DATED AS OF _____, 1999
---------
=======================================================
PROVIDING FOR ISSUANCE OF DEBT SECURITIES
<PAGE>
CROSS REFERENCE SHEET SHOWING THE
LOCATION IN THE INDENTURE OF THE PROVISIONS INSERTED
PURSUANT TO SECTIONS 310 THROUGH 318(a) INCLUSIVE OF
THE TRUST INDENTURE ACT OF 1939
<TABLE>
<CAPTION>
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
- ----------------- -------------------------------------------------------------- ----
<S> <C> <C>
310(a)(1) 8.9 43
310(a)(2) 8.9 43
310(a)(3) NOT APPLICABLE --
310(a)(4) NOT APPLICABLE --
310(a)(5) 8.9 43
310(b) 8.8 43
310(c) NOT APPLICABLE --
311(a) 8.14 46
311(b) 8.14 46
311(c) NOT APPLICABLE --
312(a) 6.1(a) 31
312(b) 6.1(b) 31
312(c) 6.1(c) 32
313(a) 6.3(a) 33
313(b) 6.3(b) 33
313(c) 6.3(d) 33
313(d) 6.3(c) and 6.3(d) 33
314(a) 6.2(a), 6.2(b) and 6.2(c) 30-32
314(b) NOT APPLICABLE 30
314(c)(1) Definition of Officers' Certificate, 6.5 and 14.5(a) 5;30;56
314(c)(2) Definition of Opinion of Counsel and 14.5 5;56
314(c)(3) NOT APPLICABLE --
314(d)(1) NOT APPLICABLE 4;23
314(d)(2) NOT APPLICABLE 4;23
314(d)(3) NOT APPLICABLE 23
314(e) 14.5(b) 56
314(f) NOT APPLICABLE --
315(a) 8.1 and 8.2 40-42
315(b) 7.8 39
315(c) 8.1(a) 40
315(d) 8.1(b) 40
315(e) 7.9 39
316(a) 7.7 39
9.4 47
12.2 53
316(b) 7.4 38
12.2 53
<PAGE>
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
- ----------------- -------------------------------------------------------------- ----
<S> <C> <C>
316(c) 9.6 48
317(a)(1) 7.2(b) 36
317(a)(2) 7.2(c) 36
317(b) 4.2 27
5.4 29
318(a) 14.7 57
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I. DEFINITIONS................................................................................1
Section 1.1. General...............................................................................1
Section 1.2. Trust Indenture Act...................................................................1
Section 1.3. Definitions...........................................................................2
ARTICLE II. FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES............................7
Section 2.1. Form Generally........................................................................7
Section 2.2. Form Of Trustee's Certificate Of Authentication.......................................7
Section 2.3. Amount Unlimited......................................................................7
Section 2.4. Denominations, Dates, Interest Payment And Record Dates...............................7
Section 2.5. Execution, Authentication, Delivery And Dating........................................9
Section 2.6. Exchange And Registration Of Transfer Of Securities..................................11
Section 2.7. Mutilated, Destroyed, Lost Or Stolen Securities......................................12
Section 2.8. Temporary Securities.................................................................13
Section 2.9. Cancellation Of Securities Paid, Etc.................................................13
Section 2.10. Interest Rights Preserved............................................................14
Section 2.11. Special Record Date..................................................................14
Section 2.12. Payment Of Securities................................................................14
Section 2.13. Securities Issuable In The Form Of A Global Security.................................15
ARTICLE III. REDEMPTION OF SECURITIES..................................................................17
Section 3.1. Applicability Of Article.............................................................17
Section 3.2. Notice Of Redemption; Selection Of Securities........................................17
Section 3.3. Payment Of Securities On Redemption; Deposit Of Redemption Price.....................18
ARTICLE IV. SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS..............................................19
Section 4.1. Satisfaction And Discharge...........................................................19
Section 4.2. Deposited Moneys To Be Held In Trust By Trustee......................................21
Section 4.3. Paying Agent To Repay Moneys Held....................................................21
Section 4.4. Return Of Unclaimed Moneys...........................................................21
ARTICLE V. PARTICULAR COVENANTS OF THE COMPANY.......................................................21
Section 5.1. Payment Of Principal, Premium And Interest...........................................21
Section 5.2. Office For Notices And Payments, Etc.................................................21
Section 5.3. Appointments To Fill Vacancies In Trustee's Office...................................22
Section 5.4. Provision As To Paying Agent.........................................................22
Section 5.5. Certificates And Notice To Trustee...................................................23
ARTICLE VI. SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE...........................23
Section 6.1. Securityholder Lists.................................................................23
Section 6.2. Securities And Exchange Commission Reports...........................................24
Section 6.3. Reports By The Trustee...............................................................25
i
<PAGE>
<S> <C> <C>
ARTICLE VII. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENTS OF DEFAULT..........................26
Section 7.1. Events Of Default....................................................................26
Section 7.2. Payment Of Securities On Default; Suit Therefor......................................28
Section 7.3. Application Of Moneys Collected By Trustee...........................................29
Section 7.4. Proceedings By Securityholders.......................................................30
Section 7.5. Proceedings By Trustee...............................................................30
Section 7.6. Remedies Cumulative And Continuing...................................................30
Section 7.7. Direction Of Proceedings And Waiver Of Defaults By Majority Of Securityholders.......31
Section 7.8. Notice Of Default....................................................................31
Section 7.9. Undertaking To Pay Costs.............................................................32
ARTICLE VIII. CONCERNING THE TRUSTEE....................................................................32
Section 8.1. Duties And Responsibilities Of Trustee...............................................32
Section 8.2. Reliance On Documents, Opinions, Etc.................................................33
Section 8.3. No Responsibility For Recitals, Etc..................................................34
Section 8.4. Trustee, Authenticating Agent, Paying Agent Or Registrar May Own Securities..........34
Section 8.5. Moneys To Be Held In Trust...........................................................34
Section 8.6. Compensation And Expenses Of Trustee.................................................34
Section 8.7. Officers' Certificate As Evidence....................................................35
Section 8.8. Conflicting Interest Of Trustee......................................................35
Section 8.9. Existence And Eligibility Of Trustee.................................................35
Section 8.10. Resignation Or Removal Of Trustee....................................................35
Section 8.11. Appointment Of Successor Trustee.....................................................36
Section 8.12. Acceptance By Successor Trustee......................................................37
Section 8.13. Succession By Merger, Etc............................................................37
Section 8.14. Limitations On Rights Of Trustee As A Creditor.......................................38
Section 8.15. Authenticating Agent.................................................................38
ARTICLE IX. CONCERNING THE SECURITYHOLDERS............................................................39
Section 9.1. Action By Securityholders............................................................39
Section 9.2. Proof Of Execution By Securityholders................................................39
Section 9.3. Who Deemed Absolute Owners...........................................................39
Section 9.4. Company-Owned Securities Disregarded.................................................39
Section 9.5. Revocation Of Consents; Future Holders Bound.........................................40
Section 9.6. Record Date For Securityholder Acts..................................................40
ARTICLE X. SECURITYHOLDERS' MEETING..................................................................40
Section 10.1. Purposes Of Meetings.................................................................40
Section 10.2. Call Of Meetings By Trustee..........................................................41
Section 10.3. Call Of Meetings By Company Or Securityholders.......................................41
Section 10.4. Qualifications For Voting............................................................41
Section 10.5. Regulations..........................................................................41
Section 10.6. Voting...............................................................................42
Section 10.7. Rights Of Trustee Or Securityholders Not Delayed.....................................42
ARTICLE XI. CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION................................43
Section 11.1. Company May Consolidate, Etc. Only On Certain Terms..................................43
ii
<PAGE>
<S> <C> <C>
Section 11.2. Successor Corporation Substituted....................................................43
ARTICLE XII. SUPPLEMENTAL INDENTURES...................................................................43
Section 12.1. Supplemental Indentures Without Consent Of Securityholders...........................43
Section 12.2. Supplemental Indentures With Consent Of Securityholders..............................44
Section 12.3. Compliance With Trust Indenture Act; Effect Of Supplemental Indentures...............45
Section 12.4. Notation On Securities...............................................................46
Section 12.5. Evidence Of Compliance Of Supplemental Indenture To Be Furnished Trustee.............46
ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS...........................46
Section 13.1. Indenture And Securities Solely Corporate Obligations................................46
ARTICLE XIV. MISCELLANEOUS PROVISIONS..................................................................46
Section 14.1. Provisions Binding On Company's Successors...........................................46
Section 14.2. Official Acts By Successor Corporation...............................................46
Section 14.3. Notices..............................................................................47
Section 14.4. Governing Law........................................................................47
Section 14.5. Evidence Of Compliance With Conditions Precedent.....................................47
Section 14.6. Business Days........................................................................48
Section 14.7. Trust Indenture Act To Control.......................................................48
Section 14.8. Table Of Contents, Headings, Etc.....................................................48
Section 14.9. Execution In Counterparts............................................................49
Section 14.10. Manner Of Mailing Notice To Securityholders..........................................49
Section 14.11. Approval By Trustee Of Expert Or Counsel.............................................49
EXHIBIT A -- Form of Global Security.............................................................A-1
EXHIBIT B -- Form of Security....................................................................B-1
</TABLE>
iii
<PAGE>
THIS INDENTURE, dated as of _____ __, 1999, between NORTHERN STATES
POWER COMPANY, a corporation duly organized and existing under the laws of the
State of Wisconsin (the "COMPANY"), and FIRSTAR BANK MILWAUKEE, NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States, as trustee (the "TRUSTEE").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured debentures, notes or other evidences
of indebtedness (the "SECURITIES"), to be issued as in this Indenture provided;
AND WHEREAS, all acts and things necessary to make this Indenture a
valid agreement according to its terms have been done and performed, and the
execution of this Indenture and the issue hereunder of the Securities have in
all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are, and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the Securities
by the Holders thereof and of the sum of one dollar duly paid to it by the
Trustee at the execution of this Indenture, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee for the equal
and proportionate benefit of the respective Holders from time to time of the
Securities, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. GENERAL. The terms defined in this Article I (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Article I.
SECTION 1.2. TRUST INDENTURE ACT. (a) Whenever this Indenture refers to a
provision of the Trust Indenture Act of 1939, as amended (the "TIA"), such
provision is incorporated by reference in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this Indenture that
are defined by the TIA, defined by the TIA by reference to another statute or
defined by a rule of the Commission under the TIA shall have the meanings
assigned to them in the TIA or such statute or rule as in force on the date of
execution of this Indenture.
1
<PAGE>
SECTION 1.3. DEFINITIONS. For purposes of this Indenture, the following terms
shall have the following meanings.
AUTHENTICATING AGENT:
The term "AUTHENTICATING AGENT" shall mean any agent of the Trustee which shall
be appointed and acting pursuant to Section 8.15 hereof.
AUTHORIZED AGENT:
The term "AUTHORIZED AGENT" shall mean any agent of the Company designated as
such by an Officers' Certificate delivered to the Trustee.
BOARD OF DIRECTORS:
The term "BOARD OF DIRECTORS" shall mean the Board of Directors of the Company
or the Financing Committee of such Board or any other duly authorized committee
of such Board.
BOARD RESOLUTION:
The term "BOARD RESOLUTION" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
BUSINESS DAY:
The term "BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions or trust companies in the
Borough of Manhattan, the City and State of New York, or in the city where the
corporate trust office of the Trustee is located, are obligated or authorized by
law or executive order to close.
COMMISSION:
The term "COMMISSION" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body performing
such duties.
COMPANY:
The term "COMPANY" shall mean the corporation named as the "Company" in the
first paragraph of this Indenture, and its successors and assigns permitted
hereunder.
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COMPANY ORDER:
The term "COMPANY ORDER" shall mean a written order signed in the name of the
Company by one of the Chairman, the President, any Vice President, the Treasurer
or an Assistant Treasurer, and the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee.
CORPORATE TRUST OFFICE OF THE TRUSTEE:
The term "CORPORATE TRUST OFFICE OF THE TRUSTEE", or other similar term, shall
mean the corporate trust office of the Trustee, at which at any particular time
its corporate trust business shall be principally administered, which office is
at the date of the execution of this Indenture located at 1555 North River
Center Drive, Suite 301, P.O. Box 2077, Milwaukee, Wisconsin 53201-2077.
DEPOSITORY:
The term "DEPOSITORY" shall mean, unless otherwise specified in a Company Order
pursuant to Section 2.5 hereof, The Depository Trust Company, New York, New
York, or any successor thereto registered and qualified under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation.
EVENT OF DEFAULT:
The term "EVENT OF DEFAULT" shall mean any event specified in Section 7.1
hereof, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
GLOBAL SECURITY:
The term "GLOBAL SECURITY" shall mean a Security that pursuant to Section 2.5
hereof is issued to evidence Securities, that is delivered to the Depository or
pursuant to the instructions of the Depository and that shall be registered in
the name of the Depository or its nominee.
INDENTURE:
The term "INDENTURE" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
INTEREST PAYMENT DATE:
The term "INTEREST PAYMENT DATE" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.5 hereof, (a) each May 1 and November 1
during the period any Security is outstanding (provided that the first Interest
Payment Date for any Security, the Original Issue Date of which is after a
Regular Record Date but prior to the respective Interest Payment Date, shall be
the Interest Payment Date following the next succeeding Regular Record Date),
(b) a date of maturity of such Security and (c) only with respect to defaulted
interest on such Security,
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the date established by the Trustee for the payment of such defaulted
interest pursuant to Section 2.11 hereof.
MATURITY:
The term "MATURITY," when used with respect to any Security, shall mean the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the stated maturity thereof or by declaration of
acceleration, redemption or otherwise.
OFFICERS' CERTIFICATE:
The term "OFFICERS' CERTIFICATE" when used with respect to the Company, shall
mean a certificate signed by one of the Chairman, the President, any Vice
President, the Treasurer or an Assistant Treasurer, and by the Secretary or an
Assistant Secretary of the Company.
OPINION OF COUNSEL:
The term "OPINION OF COUNSEL" shall mean an opinion in writing signed by legal
counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 14.5 hereof. If the Indenture requires the delivery of
an Opinion of Counsel to the Trustee, the text and substance of which has been
previously delivered to the Trustee, the Company may satisfy such requirement by
the delivery by the legal counsel that delivered such previous Opinion of
Counsel of a letter to the Trustee to the effect that the Trustee may rely on
such previous Opinion of Counsel as if such Opinion of Counsel was dated and
delivered the date delivery of such Opinion of Counsel is required. Any Opinion
of Counsel may contain conditions and qualifications satisfactory to the
Trustee.
OPINION OF INDEPENDENT COUNSEL:
The term "OPINION OF INDEPENDENT COUNSEL" shall mean an opinion in writing
signed by legal counsel, who shall not be an employee of the Company, meeting
the applicable requirements of Section 14.5. Any Opinion of Independent Counsel
may contain conditions and qualifications satisfactory to the Trustee.
ORIGINAL ISSUE DATE:
The term "ORIGINAL ISSUE DATE" shall mean for a Security, or portions thereof,
the date upon which it, or such portion, was issued by the Company pursuant to
this Indenture and authenticated by the Trustee (other than in connection with a
transfer, exchange or substitution).
OUTSTANDING:
The term "OUTSTANDING", when used with reference to Securities, shall, subject
to Section 9.4 hereof, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
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(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company), provided that if
such Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided in Article III, or provisions
satisfactory to the Trustee shall have been made for giving such notice;
(c) Securities, or portions thereof, that have been paid and
discharged or are deemed to have been paid and discharged pursuant to the
provisions of this Indenture; and
(d) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered, or which have been
paid, pursuant to Section 2.7 hereof.
PERSON:
The term "PERSON" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political subdivision
thereof.
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY:
The term "PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY" shall mean 100 North
Barstow Street, Eau Claire, Wisconsin 54703 or such other place where the main
corporate offices of the Company are located as designated in writing to the
Trustee by an Authorized Agent.
REGULAR RECORD DATE:
The term "REGULAR RECORD DATE" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.5, for an Interest Payment Date for a
particular Security (a) the fifteenth day of the calendar month next preceding
each Interest Payment Date (unless the Interest Payment Date is the date of
maturity of such Security, in which event, the Regular Record Date shall be as
described in clause (b) hereof) and (b) the date of maturity of such Security.
RESPONSIBLE OFFICER:
The term "RESPONSIBLE OFFICER" or "RESPONSIBLE OFFICERS" when used with respect
to the Trustee shall mean one or more of the following: the chairman of the
board of directors, the vice chairman of the board of directors, the chairman of
the executive committee, the president, any vice president, the secretary, the
treasurer, any trust officer, any assistant trust officer, any second or
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by
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the persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
SECURITY OR SECURITIES:
The terms "SECURITY" or "SECURITIES" shall mean any debt security or debt
securities, as the case may be, authenticated and delivered under this
Indenture, including any Global Security.
SECURITYHOLDER:
The terms "SECURITYHOLDER", "HOLDER OF SECURITIES" or "HOLDER" shall mean any
Person in whose name at the time a particular Security is registered on the
books of the Trustee kept for that purpose in accordance with the terms hereof.
SPECIAL RECORD DATE:
The term "SPECIAL RECORD DATE" shall mean, with respect to any Security, the
date established by the Trustee in connection with the payment of defaulted
interest on such Security pursuant to Section 2.11 hereof.
STATED MATURITY:
The term "STATED MATURITY" shall mean with respect to any Security, the last
date on which principal on such Security becomes due and payable as therein or
herein provided, other than by declaration of acceleration or by redemption.
TRUSTEE:
The term "TRUSTEE" shall mean Firstar Bank Milwaukee, National Association and,
subject to Article VIII, shall also include any successor Trustee.
U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. GOVERNMENT OBLIGATIONS" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment of
principal and interest by, the United States of America or an agency thereof for
the payment of which obligations or guarantee the full faith and credit of the
United States is pledged or (ii) certificates or receipts representing direct
ownership interests in obligations or specified portions (such as principal or
interest) of obligations described in clause (i) above, which obligations are
held by a custodian in safekeeping in a manner satisfactory to the Trustee.
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ARTICLE II.
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
SECTION 2.1. FORM GENERALLY.
(a) If the Securities are in the form of a Global Security they
shall be in substantially the form set forth in EXHIBIT A to this Indenture,
and, if the Securities are not in the form of a Global Security, they shall be
in substantially the form set forth in EXHIBIT B to this Indenture, or, in any
case, in such other form as shall be established by a Board Resolution, or a
Company Order pursuant to a Board Resolution, or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with applicable rules of any securities exchange or of the Depository or with
applicable law or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
(b) The definitive Securities shall be typed, printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
Trustee's Certificate of Authentication
This Security is one of the Securities of the series herein designated,
described or provided for in the within-mentioned Indenture.
Firstar Bank Milwaukee, National Association, AS
TRUSTEE
By: _________________________________________
AUTHORIZED OFFICER
SECTION 2.3. AMOUNT UNLIMITED. The aggregate principal amount of Securities that
may be authenticated and delivered under this Indenture is unlimited, subject to
compliance with the provisions of this Indenture.
SECTION 2.4. DENOMINATIONS, DATES, INTEREST PAYMENT AND RECORD DATES.
(a) The Securities shall be issuable in registered form without
coupons in denominations of $1,000 and integral multiples thereof or such other
amount or amounts as may be authorized by the Board of Directors or a Company
Order pursuant to a Board Resolution or
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in one or more indentures supplemental hereto; provided that the principal
amount of a Global Security shall not exceed $200,000,000 unless otherwise
permitted by the Depository.
(b) Each Security shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date or, as
provided in Section 2.13(e) hereof, two or more Original Issue Dates; each
Security issued upon transfer, exchange or substitution of a Security shall bear
the Original Issue Date or Dates of such transferred, exchanged or substituted
Security, subject to the provisions of Section 2.13(e) hereof.
(c) Each Security shall bear interest from the later of (1) its
Original Issue Date (or, if pursuant to Section 2.13 hereof, a Global Security
has two or more Original Issue Dates, interest shall, beginning on each such
Original Issue Date, begin to accrue for that part of the principal amount of
such Global Security to which that Original Issue Date is applicable), or (2)
the most recent date to which interest has been paid or duly provided for with
respect to such Security until the principal of such Security is paid or made
available for payment, and interest on each Security shall be payable on each
Interest Payment Date after the Original Issue Date.
(d) Each Security shall mature on a stated maturity specified in
the Security. The principal amount of each outstanding Security shall be payable
on the maturity date or dates specified therein.
(e) Unless otherwise specified in a Company Order pursuant to
Section 2.5 hereof, interest on each of the Securities shall be calculated on
the basis of a 360-day year of twelve 30-day months and shall be computed at a
fixed rate until the maturity of such Securities. The method of computing
interest on any Securities not bearing a fixed rate of interest shall be set
forth in a Company Order pursuant to Section 2.5 hereof. Unless otherwise
specified in a Company Order pursuant to Section 2.5 hereof, principal, interest
and premium on the Securities shall be payable in the currency of the United
States.
(f) Except as provided in the following sentence, the Person in
whose name any Security is registered at the close of business on any Regular
Record Date or Special Record Date with respect to an Interest Payment Date for
such Security shall be entitled to receive the interest payable on such Interest
Payment Date notwithstanding the cancellation of such Security upon any
registration of transfer, exchange or substitution of such Security subsequent
to such Regular Record Date or Special Record Date and prior to such Interest
Payment Date. Any interest payable at maturity shall be paid to the Person to
whom the principal of such Security is payable.
(g) The Trustee (or any duly selected paying agent) shall provide
to the Company during each month that precedes an Interest Payment Date a list
of the principal, interest and premium to be paid on Securities on such Interest
Payment Date; provided, however, that any failure to receive such notice shall
not relieve the Company of its obligation to pay the principal, interest and
premium on the Securities when due. The Trustee shall assume responsibility for
withholding taxes on interest paid as required by law except with respect to any
Global Security.
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SECTION 2.5. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Securities shall be executed on behalf of the Company by
one of its Chairman, President, any Vice President, its Treasurer or an
Assistant Treasurer of the Company and attested by the Secretary or an Assistant
Secretary of the Company. The signature of any of these officers on the
Securities may be manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with or preceded by one or
more Company Orders for the authentication and delivery of such Securities, and
the Trustee in accordance with any such Company Order shall authenticate and
deliver such Securities. The Securities shall be issued in series. Such Company
Order shall specify the following with respect to each series of Securities: (i)
any limitations on the aggregate principal amount of the Securities to be issued
as part of such series, (ii) the Original Issue Date or Dates for such series,
(iii) the stated maturity of such series, (iv) the interest rate or rates, or
method of calculation of such rate or rates, for such series, (v) the terms, if
any, regarding the optional or mandatory redemption of such series, including
redemption date or dates of such series, if any, and the price or prices
applicable to such redemption (including any premium), (vi) the period or
periods within which, the price or prices at which and the terms and conditions
upon which such Securities may be repaid, in whole or in part, at the option of
the Holder thereof, (vii) whether or not the Securities of such series shall be
issued in whole or in part in the form of a Global Security and, if so, the
Depository for such Global Security, (viii) the designation of such series, (ix)
if the form of the Securities of such series is not as described in EXHIBIT A OR
EXHIBIT B hereto, the form of the Securities of such series, (x) the maximum
annual interest rate, if any, of the Securities permitted for such series, (xi)
any other information necessary to complete the Securities of such series, (xii)
the establishment of any office or agency pursuant to Section 5.2 hereof, and
(xiii) any other terms of such series not inconsistent with this Indenture.
Prior to authenticating Securities of any series, and in accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall receive from the Company the following at or before the
issuance of the initial Security of such series of Securities, and (subject to
Section 8.1 hereof) shall be fully protected in relying upon:
(1) A Board Resolution authorizing such Company Order or Orders
and, if the form of Securities is established by a Board Resolution or a Company
Order pursuant to a Board Resolution, a copy of such Board Resolution;
(2) an Opinion of Counsel stating substantially the following
subject to customary qualifications and exceptions:
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(A) if the form of Securities has been established by or
pursuant to a Board Resolution, a Company Order pursuant to a Board
Resolution, or in a supplemental indenture as permitted by Section 2.1
hereof, that such form has been established in conformity with this
Indenture;
(B) that the Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of creditors and the
application of general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except
as enforcement of provisions of the Indenture may be limited by state
laws affecting the remedies for the enforcement of the security
provided for in the Indenture;
(C) that the Indenture is qualified to the extent
necessary under the TIA;
(D) that such Securities have been duly authorized and
executed by the Company, and when authenticated by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms,
except to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application relating to or affecting the
enforcement of creditors and the application of general principles of
equity (regardless of whether enforcement is sought in a proceeding at
law or in equity) and except as enforcement of provisions of this
Indenture may be limited by state laws affecting the remedies for the
enforcement of the security provided for in this Indenture;
(E) that the issuance of the Securities will not result
in any default under this Indenture, or any other contract, indenture,
loan agreement or other instrument to which the Company is a party or
by which it or any of its property is bound; and
(F) that all consents or approvals of the Public Service
Commission of Wisconsin (or any successor agency) and of any other
federal or state regulatory agency required in connection with the
Company's execution and delivery of this Indenture and such series of
Securities have been obtained and not withdrawn (except that no
statement need be made with respect to state securities laws).
(3) an Officer's Certificate stating that (i) the Company is not,
and upon the authentication by the Trustee of the series of Securities, will not
be in default under any of the terms or covenants contained in the Indenture,
and (ii) all conditions that must be met by the Company to issue Securities
under this Indenture have been met.
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(d) The Trustee shall have the right to decline to
authenticate and deliver any Security:
(1) if the issuance of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee;
(2) if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken; or
(3) if the Trustee in good faith by its Board of Directors,
executive officers or a trust committee of directors and/or responsible
officers determines that such action would expose the Trustee to personal
liability to Holders of any outstanding Securities.
(e) No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of an
authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
(f) If all Securities of a series are not to be authenticated
and issued at one time, the Company shall not be required to deliver the
Company Order, Board Resolutions, Officers' Certificate and Opinion of
Counsel (including any such that would be otherwise required pursuant to
Section 14.5 hereof) described in Section 2.5(c) hereof at or prior to the
authentication of each Security of such series, if such items are delivered
at or prior to the time of authentication of the first Security of such
series to be authenticated and issued. If all of the Securities of a series
are not authenticated and issued at one time, for each issuance of Securities
after the initial issuance of Securities, the Company shall be required only
to deliver to the Trustee the Security and a written request (executed by one
of the Chairman, the President, any Vice President, the Treasurer, or an
Assistant Treasurer, and the Secretary or an Assistant Secretary of the
Company) to the Trustee to authenticate such Security and to deliver such
Security in accordance with the instructions specified by such request. Any
such request shall constitute a representation and warranty by the Company
that the statements made in the Officers' Certificate delivered to the
Trustee prior to the authentication and issuance of the first Security of
such series are true and correct on the date thereof as if made on and as of
the date thereof.
SECTION 2.6. EXCHANGE AND REGISTRATION OF TRANSFER OF SECURITIES.
(a) Subject to Section 2.13 hereof, Securities may be exchanged
for one or more new Securities of any authorized denominations and of a like
aggregate principal amount, series and stated maturity and having the same
terms and Original Issue Date or Dates. Securities to be exchanged shall be
surrendered at any of the offices or agencies to be maintained pursuant to
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Section 5.2 hereof, and the Trustee shall deliver in exchange therefor the
Security or Securities which the Securityholder making the exchange shall be
entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies,
a register or registers in which, subject to such reasonable regulations as
it may prescribe, the Trustee shall register or cause to be registered
Securities and shall register or cause to be registered the transfer of
Securities as in this Article II provided. Such register shall be in written
form or in any other form capable of being converted into written form within
a reasonable time. At all reasonable times, such register shall be open for
inspection by the Company. Upon due presentment for registration of transfer
of any Security at any such office or agency, the Company shall execute and
the Trustee shall register, authenticate and deliver in the name of the
transferee or transferees one or more new Securities of any authorized
denominations and of a like aggregate principal amount, series and stated
maturity and having the same terms and Original Issue Date or Dates.
(c) All Securities presented for registration of transfer or
for exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee and duly executed by the Holder
or the attorney in fact of such Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or
registration of transfer of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
(e) The Trustee shall not be required to exchange or register a
transfer of any Securities selected, called or being called for redemption
(including Securities, if any, redeemable at the option of the Holder
provided such Securities are then redeemable at such Holder's option) except,
in the case of any Security to be redeemed in part, the portion thereof not
to be so redeemed.
(f) If the principal amount, and applicable premium, of part,
but not all of a Global Security is paid, then upon surrender to the Trustee
of such Global Security, the Company shall execute, and the Trustee shall
authenticate, deliver and register, a Global Security in an authorized
denomination in aggregate principal amount equal to, and having the same
terms, Original Issue Date or Dates and series as, the unpaid portion of such
Global Security.
SECTION 2.7. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.
(a) If any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company shall execute, and
upon its request the Trustee shall authenticate and deliver, a new Security
of like form and principal amount and having the same terms and Original
Issue Date or Dates and bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substituted Security shall furnish to the Company, the
Trustee and any paying agent or Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft of a Security, the applicant shall
also furnish to the Company and to the
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Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
(b) The Trustee shall authenticate any such substituted
Security and deliver the same upon the written request or authorization of
any officer of the Company. Upon the issuance of any substituted Security,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith. If any Security which has matured, is
about to mature, has been redeemed or called for redemption shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security) if the
applicant for such payment shall furnish to the Company, the Trustee and any
paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction,
loss or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
(c) Every substituted Security issued pursuant to this Section
2.7 by virtue of the fact that any Security is mutilated, destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not such destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.8. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities, the Company may execute and the Trustee shall authenticate and
deliver temporary Securities (printed, lithographed or otherwise reproduced).
Temporary Securities shall be issuable in any authorized denomination and
substantially in the form of the definitive Securities but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every such temporary
Security shall be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
deliver to the Trustee definitive Securities and thereupon any or all
temporary Securities shall be surrendered in exchange therefor at the
corporate trust office of the Trustee, and the Trustee shall authenticate,
deliver and register in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities. Such exchange shall be
made by the Company at its own expense and without any charge therefor to the
Securityholders. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities authenticated and delivered hereunder.
SECTION 2.9. CANCELLATION OF SECURITIES PAID, ETC. All Securities surrendered
for the purpose of payment, redemption, exchange or registration of transfer
shall be surrendered to the Trustee
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for cancellation and promptly canceled by it and no Securities shall be
issued in lieu thereof except as expressly permitted by this Indenture. The
Company's acquisition of any Securities shall operate as a redemption or
satisfaction of the indebtedness represented by such Securities and such
Securities shall be surrendered by the Company to and canceled by the Trustee.
SECTION 2.10. INTEREST RIGHTS PRESERVED. Each Security delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other
Security shall carry all the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security, and each such Security
shall be so dated that neither gain nor loss of interest shall result from
such transfer, exchange or substitution.
SECTION 2.11. SPECIAL RECORD DATE. If and to the extent that the Company
fails to make timely payment or provision for timely payment of interest on
any series of Securities (other than on an Interest Payment Date that is a
maturity date), that interest shall cease to be payable to the Persons who
were the Securityholders of such series at the applicable Regular Record
Date. In that event, when moneys become available for payment of the
interest, the Trustee shall (a) establish a date of payment of such interest
and a Special Record Date for the payment of that interest, which Special
Record Date shall be not more than 15 or fewer than 10 days prior to the date
of the proposed payment and (b) mail notice of the date of payment and of the
Special Record Date not fewer than 10 days preceding the Special Record Date
to each Securityholder of such series at the close of business on the 15th
day preceding the mailing at the address of such Securityholder, as it
appeared on the register for the Securities. On the day so established by the
Trustee the interest shall be payable to the Holders of the applicable
Securities at the close of business on the Special Record Date.
SECTION 2.12. PAYMENT OF SECURITIES. Payment of the principal, interest and
premium on all Securities shall be payable as follows:
(a) On or before 11:30 a.m., New York City time, of the day on
which payment of principal, interest and premium is due on any Global
Security pursuant to the terms thereof, the Company shall deliver to the
Trustee funds available on such date sufficient to make such payment, by wire
transfer of immediately available funds or by instructing the Trustee to
withdraw sufficient funds from an account maintained by the Company with the
Trustee or such other method as is acceptable to the Trustee and the
Depository. On or before Noon, New York City time, or such other time as
shall be agreed upon between the Trustee and the Depository, of the day on
which any payment of interest is due on any Global Security (other than at
maturity) and following receipt of the necessary funds from the Company, the
Trustee shall pay to the Depository such interest in same day funds. On or
before Noon, New York City time or such other time as shall be agreed upon
between the Trustee and the Depository, of the day on which principal,
interest payable at maturity and premium, if any, is due on any Global
Security and following receipt of the necessary funds from the Company, the
Trustee shall deposit with the Depository the amount equal to the principal,
interest payable at maturity and premium, if any, by wire transfer into the
account specified by the Depository. As a condition to the payment, at
maturity or upon redemption, of any part of the principal of, interest on and
applicable premium of any Global Security, the Depository shall surrender, or
cause to be surrendered, such Global
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Security to the Trustee, whereupon a new Global Security shall be issued to
the Depository pursuant to Section 2.6(f) hereof.
(b) With respect to any Security that is not a Global Security,
principal, applicable premium and interest due at the maturity of the
Security shall be payable in immediately available funds when due upon
presentation and surrender of such Security at the corporate trust office of
the Trustee or at the authorized office of any paying agent. Interest on any
Security that is not a Global Security (other than interest payable at
maturity) shall be paid to the Holder thereof as its name appears on the
register by check payable in clearinghouse funds; provided that if the
Trustee receives a written request from any Holder of Securities, the
aggregate principal amount of which having the same Interest Payment Date
equals or exceeds $10,000,000, on or before the applicable Regular Record
Date for such Interest Payment Date, interest shall be paid by wire transfer
of immediately available funds to a bank within the continental United States
designated by such Holder in its request or by direct deposit into the
account of such Holder designated by such Holder in its request if such
account is maintained with the Trustee or any paying agent.
SECTION 2.13. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section 2.5
hereof that the Securities of a particular series are to be issued in whole
or in part in the form of one or more Global Securities, then the Company
shall execute and the Trustee shall, in accordance with Section 2.5 hereof
and the Company Order delivered to the Trustee thereunder, authenticate and
deliver such Global Security or Securities, which (i) shall represent, shall
be denominated in an amount equal to the aggregate principal amount of, and
shall have the same terms as, the outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be registered
in the name of the Depository or its nominee, (iii) shall be delivered by the
Trustee to the Depository or pursuant to the Depository's instruction and
(iv) shall bear a legend substantially to the following effect: "This
Security is a Global Security registered in the name of the Depository
(referred to herein) or a nominee thereof and, unless and until it is
exchanged in whole or in part for the individual Securities represented
hereby, this Global Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository
or any such nominee to a successor Depository or a nominee of such successor
Depository. Unless this Global Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York), to the trustee 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., 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" or such
other legend as may be required by the rules and regulations of the
Depository.
(b) Notwithstanding any other provision of Section 2.6 hereof
or of this Section 2.13, unless the terms of a Global Security expressly
permit such Global Security to be exchanged in
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whole or in part for individual Securities, a Global Security may be
transferred, in whole but not in part, only as described in the legend
thereto.
(c) (i) If at any time the Depository for a Global Security
notifies the Company that it is unwilling or unable to continue as Depository
for such Global Security or if at any time the Depository for the Global
Security shall no longer be eligible or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation,
the Company shall appoint a successor Depository with respect to such Global
Security. If a successor Depository for such Global Security is not appointed
by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company's election pursuant to
Section 2.5(c)(vi) hereof shall no longer be effective with respect to the
series of Securities evidenced by such Global Security and the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series in
exchange for such Global Security, shall authenticate and deliver, individual
Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of the Global
Security in exchange for such Global Security. The Trustee shall not be
charged with knowledge or notice of the ineligibility of a Depository unless
a responsible officer assigned to and working in its corporate trustee
administration department shall have actual knowledge thereof.
(ii) The Company may at any time and in its sole discretion
determine that all outstanding (but not less than all) Securities of a series
issued or issuable in the form of one or more Global Securities shall no
longer be represented by such Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Securities in exchange for
such Global Security, shall authenticate and deliver individual Securities of
like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Security or Securities in
exchange for such Global Security or Securities.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual
Securities, such Global Security shall be canceled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Depository for delivery to the
persons in whose names such Securities are so registered, or if the
Depository shall refuse or be unable to deliver such Securities, the Trustee
shall deliver such Securities to the persons in whose names such Securities
are registered, unless otherwise agreed upon between the Trustee and the
Company, in which event the Company shall cause the Securities to be
delivered to the persons in whose names such Securities are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent
nor any paying agent shall have any responsibility or liability for any
aspect of the records relating to, or
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payments made on account of, beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interest.
(e) Pursuant to the provisions of this subsection, at the
option of the Trustee and upon 30 days' written notice to the Depository but
not prior to the first Interest Payment Date of the respective Global
Securities, the Depository shall be required to surrender any two or more
Global Securities which have identical terms, including, without limitation,
identical maturities, interest rates and redemption provisions (but which may
have differing Original Issue Dates) to the Trustee, and the Company shall
execute and the Trustee shall authenticate and deliver to, or at the
direction of, the Depository a Global Security in principal amount equal to
the aggregate principal amount of, and with all terms identical to, the
Global Securities surrendered thereto and that shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date. The exchange contemplated in this subsection shall be consummated
at least 30 days prior to any Interest Payment Date applicable to any of the
Global Securities surrendered to the Trustee. Upon any exchange of any Global
Security with two or more Original Issue Dates, whether pursuant to this
Section or pursuant to Section 2.6 or Section 3.3 hereof, the aggregate
principal amount of the Securities with a particular Original Issue Date
shall be the same before and after such exchange, after giving effect to any
retirement of Securities and the Original Issue Dates applicable to such
Securities occurring in connection with such exchange.
ARTICLE III.
REDEMPTION OF SECURITIES
SECTION 3.1. APPLICABILITY OF ARTICLE. Such of the Securities as are, by
their terms, redeemable prior to their stated maturity date at the option of
the Company, may be redeemed by the Company at such times, in such amounts
and at such prices as may be specified therein and in accordance with the
provisions of this Article III.
SECTION 3.2. NOTICE OF REDEMPTION; SELECTION OF SECURITIES.
(a) The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution which shall be given with notice of
redemption to the Trustee at least 45 days (or such shorter period acceptable
to the Trustee in its sole discretion) prior to the redemption date specified
in such notice.
(b) Notice of redemption to each Holder of Securities to be
redeemed as a whole or in part shall be given by the Trustee, in the manner
provided in Section 14.10 hereof, no less than 30 or more than 60 days prior
to the date fixed for redemption. Any notice which is given in the manner
herein provided shall be conclusively presumed to have been duly given,
whether or not the Securityholder receives the notice. In any case, failure
duly to give such notice, or any defect in such notice, to the Holder of any
Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
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(c) Each such notice shall specify the date fixed for
redemption, the places of redemption and the redemption price at which such
Securities are to be redeemed, and shall state that payment of the redemption
price of such Securities or portion thereof to be redeemed will be made upon
surrender of such Securities at such places of redemption, that interest
accrued to the date fixed for redemption will be paid as specified in such
notice, and that from and after such date interest thereon shall cease to
accrue. If less than all of a series of Securities having the same terms are
to be redeemed, the notice shall specify the Securities or portions thereof
to be redeemed. If any Security is to be redeemed in part only, the notice
which relates to such Security shall state the portion of the principal
amount thereof to be redeemed, and shall state that, upon surrender of such
Security, a new Security or Securities having the same terms in aggregate
principal amount equal to the unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a supplemental indenture or
Company Order under Section 2.5 hereof, if less than all of a series of
Securities is to be redeemed, the Trustee shall select in such manner as it
shall deem appropriate and fair in its discretion the particular Securities
to be redeemed in whole or in part and shall thereafter promptly notify the
Company in writing of the Securities so to be redeemed. If less than all of a
series of Securities represented by a Global Security is to be redeemed, the
particular Securities or portions thereof of such series to be redeemed shall
be selected by the Depository for such series of Securities in such manner as
the Depository shall determine. Securities shall be redeemed only in
denominations of $1,000, provided that any remaining principal amount of a
Security redeemed in part shall be a denomination authorized under this
Indenture.
(e) If at the time of the mailing of any notice of redemption
the Company shall not have irrevocably directed the Trustee to apply funds
deposited with the Trustee or held by it and available to be used for the
redemption of Securities to redeem all the Securities called for redemption,
such notice, at the election of the Company, may state that it is subject to
the receipt of the redemption moneys by the Trustee before the date fixed for
redemption and that such notice shall be of no effect unless such moneys are
so received before such date.
SECTION 3.3. PAYMENT OF SECURITIES ON REDEMPTION; DEPOSIT OF REDEMPTION PRICE.
(a) If notice of redemption for any Securities shall have been
given as provided in Section 3.2 hereof and such notice shall not contain the
language permitted at the Company's option under Section 3.2(e) hereof, such
Securities or portions of Securities called for redemption shall become due
and payable on the date and at the places stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption of such Securities. Interest on the Securities or portions
thereof so called for redemption shall cease to accrue and such Securities or
portions thereof shall be deemed not to be entitled to any benefit under this
Indenture except to receive payment of the redemption price together with
interest accrued thereon to the date fixed for redemption. Upon presentation
and surrender of such Securities at such a place of payment in such notice
specified, such Securities or the specified portions thereof shall be paid
and redeemed at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption.
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(b) If notice of redemption shall have been given as provided
in Section 3.2 hereof and such notice shall contain the language permitted at
the Company's option under Section 3.2(e) hereof, such Securities or portions
of Securities called for redemption shall become due and payable on the date
and at the places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption of such
Securities, and interest on the Securities or portions thereof so called for
redemption shall cease to accrue and such Securities or portions thereof
shall be deemed not to be entitled to any benefit under this Indenture except
to receive payment of the redemption price together with interest accrued
thereon to the date fixed for redemption; provided that, in each case, the
Company shall have deposited with the Trustee or a paying agent on or prior
to such redemption date an amount sufficient to pay the redemption price
together with interest accrued to the date fixed for redemption. Upon the
Company making such deposit and, upon presentation and surrender of such
Securities at such a place of payment in such notice specified, such
Securities or the specified portions thereof shall be paid and redeemed at
the applicable redemption price, together with interest accrued thereon to
the date fixed for redemption. If the Company shall not make such deposit on
or prior to the redemption date, the notice of redemption shall be of no
force and effect and the principal on such Securities or specified portions
thereof shall continue to bear interest as if the notice of redemption had
not been given.
(c) No notice of redemption of Securities shall be mailed
during the continuance of any Event of Default, except (1) that, when notice
of redemption of any Securities has been mailed, the Company shall redeem
such Securities but only if funds sufficient for that purpose have prior to
the occurrence of such Event of Default been deposited with the Trustee or a
paying agent for such purpose, and (2) that notices of redemption of all
outstanding Securities may be given during the continuance of an Event of
Default.
(d) Upon surrender of any Security redeemed in part only, the
Company shall execute, and the Trustee shall authenticate, deliver and
register, a new Security or Securities of authorized denominations in
aggregate principal amount equal to, and having the same terms, Original
Issue Date or Dates and series as, the unredeemed portion of the Security so
surrendered.
ARTICLE IV.
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 4.1. SATISFACTION AND DISCHARGE. If at any time:
(a) the Company shall have paid or caused to be paid the
principal of and premium, if any, and interest on all the outstanding
Securities, as and when the same shall have become due and payable,
(b) the Company shall have delivered to the Trustee for
cancellation all outstanding Securities, or
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(c) the Company shall have irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds the entire amount in
(A) cash, (B) U.S. Government Obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash, or (C) a combination of cash and U.S. Government Obligations, in any
case sufficient, without reinvestment, as certified by an independent public
accounting firm of national reputation in a written certification delivered
to the Trustee, to pay at maturity or the applicable redemption date
(provided that notice of redemption shall have been duly given or irrevocable
provision satisfactory to the Trustee shall have been duly made for the
giving of any notice of redemption) all outstanding Securities, including
principal and any premium and interest due or to become due to such date of
maturity, as the case may be and, unless all outstanding Securities are to be
due within 90 days of such deposit by redemption or otherwise, shall also
deliver to the Trustee an Opinion of Independent Counsel to the effect that
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or similar pronouncement by the Internal Revenue
Service or that there has been a change of law, in either case to the effect
that the Holders of the Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance or discharge
of the Indenture, and if, in any such case, the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Securityholders to receive payments of principal thereof, and any premium and
interest thereon, upon the original stated due dates therefor or upon the
applicable redemption date (but not upon acceleration of maturity) from the
moneys and U.S. Government Obligations held by the Trustee pursuant to
Section 4.2 hereof, (iv) the rights and immunities of the Trustee hereunder,
(v) the rights of the Holders of Securities as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any
of them, (vi) the obligations and rights of the Trustee and the Company under
Section 4.4 hereof, and (vii) the duties of the Trustee with respect to any
of the foregoing), and the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and its obligations under,
the Securities, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture and the Trustee shall at the
request of the Company return to the Company all property and money held by
it under this Indenture and determined by it from time to time in accordance
with the certification pursuant to this Section 4.1(c) to be in excess of the
amount required to be held under this Section.
If the Securities are deemed to be paid and discharged pursuant to
Section 4.1(c) hereof, within 15 days after those Securities are so deemed to
be paid and discharged, the Trustee shall cause a written notice to be given
to each Holder in the manner provided by Section 14.10 hereof. The notice
shall:
(i) state that the Securities are deemed to be paid and
discharged;
(ii) set forth a description of any U.S. Government Obligations
and cash held by the Trustee as described above; and
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(iii) if any Securities will be called for redemption, specify
the date or dates on which those Securities are to be called for redemption.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.6 hereof, shall
survive.
SECTION 4.2. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. All moneys and
U.S. Government Obligations deposited with the Trustee pursuant to Section
4.1 hereof, shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Company if acting as its
own paying agent), to the Holders of the particular Securities for the
payment or redemption of which such moneys and U.S. Government Obligations
have been deposited with the Trustee of all sums due and to become due
thereon for principal and premium, if any, and interest.
SECTION 4.3. PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction and
discharge of this Indenture all moneys then held by any paying agent for the
Securities (other than the Trustee) shall, upon written demand by an
Authorized Agent, be repaid to the Company or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 4.4. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or paid to
the Trustee for payment of the principal of or any premium or interest on any
Securities and not applied but remaining unclaimed by the Holders of such
Securities for two years after the date upon which the principal of or any
premium or interest on such Securities, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee on written
demand by an Authorized Agent, and all liability of the Trustee shall
thereupon cease; and any Holder of any of such Securities shall thereafter
look only to the Company for any payment which such Holder may be entitled to
collect.
ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees for the benefit of the Holders of the Securities that it
will duly and punctually pay or cause to be paid the principal of and any
premium and interest on each of the Securities at the places, at the
respective times and in the manner provided in such Securities or in this
Indenture.
SECTION 5.2. OFFICE FOR NOTICES AND PAYMENTS, ETC. So long as any of the
Securities remain outstanding, the Company at its option may cause to be
maintained in the Borough of Manhattan, the City and State of New York, or
elsewhere, an office or agency where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided, and
where, at any time when the Company is obligated to make a payment of
principal and premium upon Securities, the Securities may be surrendered for
payment, and may maintain at any such office or agency and at its principal
office an office or agency where notices and demands to or upon
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the Company in respect of the Securities or of this Indenture may be served.
The designation of any such office or agency shall be made by Company Order
pursuant to Section 2.5 hereof or at any subsequent time pursuant to this
Section 5.2 hereof. The Company will give to the Trustee written notice of
the location of each such office or agency and of any change of location
thereof. If the Company shall fail to give such notice of the location or of
any change in the location of any such office or agency, presentations may be
made and notices and demands may be served at the corporate trust office of
the Trustee.
SECTION 5.3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 8.11 hereof, a Trustee, so that
there shall at all times be a Trustee hereunder.
SECTION 5.4. PROVISION AS TO PAYING AGENT. The Trustee shall be the paying
agent for the Securities and, at the option of the Company, the Company may
appoint additional paying agents (including without limitation itself).
Whenever the Company shall appoint an additional paying agent, it shall cause
such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to this Section 5.4:
(1) that it will hold in trust for the benefit of the Holders and
the Trustee all sums held by it as such agent for the payment of the
principal of and any premium or interest on the Securities (whether
such sums have been paid to it by the Company or by any other
obligor on such Securities) in trust for the benefit of the Holders
of such Securities;
(2) that it will give to the Trustee notice of any failure by the
Company (or by any other obligor on such Securities) to make any
payment of the principal of and any premium or interest on such
Securities when the same shall be due and payable; and
(3) that it will at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such paying agent.
If the Company shall act as its own paying agent with respect to any
Securities, it will, on or before each due date of the principal of and any
premium or interest on such Securities, set aside, segregate and hold in
trust for the benefit of the Holders of such Securities a sum sufficient to
pay such principal and any premium or interest so becoming due and will
notify the Trustee of any failure by it to take such action and of any
failure by the Company (or by any other obligor on such Securities) to make
any payment of the principal of and any premium or interest on such
Securities when the same shall become due and payable.
Whenever the Company shall have one or more paying agents, it will,
on or prior to each due date of the principal of (and premium, if any) or
interest, if any, on any Securities, deposit with such paying agent a sum
sufficient to pay the principal (and premium, if any) or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, if any, and (unless such
paying agent is the Trustee) the Company shall promptly notify the Trustee of
any failure on its part to so act.
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Anything in this Section 5.4 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 5.4, such sums to be held by the Trustee upon the
trusts herein contained.
Anything in this Section 5.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.4 is subject to
Sections 4.3 and 4.4 hereof.
SECTION 5.5. CERTIFICATES AND NOTICE TO TRUSTEE. The Company shall, on or
before May 1 of each year, beginning in 2000, deliver to the Trustee a
certificate from its principal executive officer, principal financial officer
or principal accounting officer covering the preceding calendar year and
stating whether or not, to the knowledge of such party, the Company has
complied with all conditions and covenants under this Indenture, and, if not,
describing in reasonable detail any failure by the Company to comply with any
such conditions or covenants. For purposes of this Section, compliance shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture.
ARTICLE VI.
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 6.1. SECURITYHOLDER LISTS.
(a) The Company shall furnish or cause to be furnished to the
Trustee semiannually, not later than 15 days after each Regular Record Date
for each Interest Payment Date that is not a maturity date and at such other
times as such Trustee may request in writing, within 30 days after receipt by
the Company of any such request, a list in such form as the Trustee may
reasonably require containing all the information in the possession or
control of the Company, or any paying agents other than the Trustee, as to
the names and addresses of the Holders of Securities, obtained since the date
as of which the next previous list, if any, was furnished. Any such list may
be dated as of a date not more than 15 days prior to the time such
information is furnished or caused to be furnished and need not include
information received after such date; provided that as long as the Trustee is
the registrar for the Securities, no such list shall be required to be
furnished. The Trustee shall preserve any list provided to it pursuant to
this Section until such time as the Company or any paying agent, as
applicable, shall provide it with a more recent list.
(b) Within five business days after the receipt by the Trustee
of a written application by any three or more Holders stating that the
applicants desire to communicate with other Holders with respect to their
rights under the Indenture or under the Securities, and accompanied by a copy
of the form of proxy or other communication which such applicants propose to
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transmit, and by reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application, the Trustee shall, at its election, either:
(i) afford to such applicants access to all information
furnished to or received by the Trustee pursuant to Section 6.1(a) hereof or,
if applicable, in its capacity as registrar to the Securities; or
(ii) inform such applicants as to the approximate number of
Holders according to the most recent information furnished to or received by
the Trustee under Section 6.1(a) hereof or if applicable in its capacity as
registrar for the Securities, and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of such
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interests of the
Holders or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of a Security, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any paying agent nor any Authenticating Agent shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with this Section,
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under this Section.
SECTION 6.2. SECURITIES AND EXCHANGE COMMISSION REPORTS.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with
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the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it will file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations, including, in the
case of annual reports, if required by such rules and regulations,
certificates or opinions of independent public accountants, conforming to the
requirements of Section 14.5, as to compliance with conditions or covenants,
compliance with which is subject to verification by accountants; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (a) and (b) of
this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
SECTION 6.3. REPORTS BY THE TRUSTEE.
(a) Within 60 days after July 15 of each year, beginning with
the July 15 after the first issuance of Securities hereunder, the Trustee
shall transmit by mail a brief report dated as of such date that complies
with Section 313(a) of the TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit by mail brief
reports that comply, both in content and date of delivery, with Section
313(b) of the TIA (to the extent required by such Section).
(c) A copy of each such report filed pursuant to this section
shall, at the time of such transmission to such Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed and
also with the Commission. The Company will notify the Trustee promptly upon
the listing of such Securities on any stock exchange.
(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Securities, as their
names and addresses appear in the register for the Securities;
(2) by mail to such Holders of Securities as have,
within the two years preceding such transmission, filed their names
and addresses with the Trustee for such purpose;
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(3) by mail, except in the case of reports pursuant to
Section 6.3(b) and (c) hereof, to all Holders of Securities whose
names and addresses have been furnished to or received by the
Trustee pursuant to Section 6.1 hereof; and
(4) at the time such report is transmitted to the
Holders of the Securities, to each exchange on which Securities are
listed and also with the Commission.
ARTICLE VII.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENTS OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT.
(a) If one or more of the following Events of Default shall
have occurred and be continuing:
(1) default in the payment of any installment of
interest upon any of the Securities as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days;
(2) default in the payment of the principal of or any
premium on any of the Securities as and when the same shall become
due and payable and continuance of such default for five days;
(3) failure on the part of the Company duly to observe
or perform any other of the covenants or agreements on the part of
the Company contained in the Securities or in this Indenture for a
period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such
notice is a "Notice of Default" hereunder, shall have been given to
the Company by the Trustee by registered mail, or to the Company and
the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities at the time outstanding;
(4) the entry of a decree or order by a court having
jurisdiction over the Company for relief in respect of the Company
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official of the Company or of any substantial part of its
property, or ordering the winding-up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(5) the filing by the Company with respect to itself or
its property of a petition or answer or consent seeking relief under
Title 11 of the United States Code, as now
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constituted or hereafter amended, or any other applicable federal or
state bankruptcy, insolvency or other similar law, or the consent by
it to the institution of proceedings thereunder or to the filing of
any such petition or to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Company or of any substantial part of
its property, or the failure of the Company generally to pay its
debts as such debts become due, or the taking of corporate action by
the Company to effectuate any such action;
then and in each and every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or
the Holders of a majority in aggregate principal amount of the Securities
then outstanding, by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the principal of all the Securities to
be due and payable immediately and upon any such declaration the same shall
become and shall be immediately due and payable, anything in this Indenture
or in the Securities contained to the contrary notwithstanding. This
provision, however, is subject to the condition that if, at any time after
the principal of the Securities shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the Company shall pay
or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all of the Securities and the principal of and
any premium on any and all Securities which shall have become due otherwise
than by acceleration (with interest on overdue installments of interest, to
the extent that payment of such interest is enforceable under applicable law,
and on such principal and applicable premium at the rate borne by the
Securities to the date of such payment or deposit) and all sums paid or
advanced by the Trustee hereunder, the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 8.6 hereof, and any and all
defaults under this Indenture, other than the non-payment of principal of and
accrued interest on Securities which shall have become due solely by
acceleration of maturity, shall have been cured or waived -- then and in
every such case such payment or deposit shall cause an automatic waiver of
the Event of Default and its consequences and shall cause an automatic
rescission and annulment of the acceleration of the Securities; but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
(b) If the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such proceeding
had been taken.
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SECTION 7.2. PAYMENT OF SECURITIES ON DEFAULT; SUIT THEREFOR.
(a) The Company covenants that in case of:
(1) default in the payment of any installment of
interest upon any of the Securities as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of or any
premium on any of the Securities as and when the same shall have
become due and payable whether at the stated maturity thereof, upon
redemption thereof (provided that such redemption is not conditioned
upon the deposit of sufficient moneys for such redemption), upon
declaration of acceleration or otherwise.
then, upon demand of the Trustee, the Company shall pay to the Trustee, for
the benefit of the Holders of the Securities, the whole amount that then
shall have so become due and payable on all such Securities for principal and
any premium or interest, or both, as the case may be, with interest upon the
overdue principal and any premium and (to the extent that payment of such
interest is enforceable under applicable law) upon the overdue installments
of interest at the rate borne by the Securities; and, in addition thereto,
such further amounts as shall be sufficient to cover the costs and expenses
of collection, including reasonable compensation to the Trustee, its agents,
attorneys and counsel, any expenses or liabilities incurred by the Trustee
hereunder other than through its negligence or bad faith, and any other
amounts due the Trustee under Section 8.6 hereof.
(b) If the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may enforce any such judgment or final decree against the Company
or any other obligor on the Securities and collect in the manner provided by
law out of the property of the Company or any other obligor on such series of
Securities wherever situated, the moneys adjudged or decreed to be payable.
(c) If there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Securities
under the United States Bankruptcy Code or any other applicable law, or in
case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any similar judicial
proceedings relative to the Company or other obligor upon the Securities, or
to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to
this Section 7.2, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and any premium and interest owing and unpaid in respect
of the Securities, and, in case of any judicial proceedings, to file such
proofs of claim and other papers or documents as may be necessary or
advisable in order to have
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the claims of the Trustee (including any amounts due to the Trustee under
Section 8.6 hereof) and of the Holders of Securities allowed in such judicial
proceedings relative to the Company or any other obligor on the Securities,
its or their creditors, or its or their property, and to collect and receive
any moneys or other property payable or deliverable on any such claims, and
to distribute the same after the deduction of its charges and expenses.
(d) All claims and rights of action under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof in any trial
or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit
of the Holders of the Securities in respect of which such action was taken.
(e) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent or to accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 7.3. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys collected
by the Trustee with respect to any of the Securities pursuant to this Article
shall be applied in the order following, at the date or dates fixed by the
Trustee for the distribution of such moneys, upon presentation of the several
Securities, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to Section
8.6 hereof;
SECOND: If the principal of the outstanding Securities in respect of which
such moneys have been collected shall not have become due and be unpaid, to
the payment of interest on the Securities, in the order of the maturity of
the installments of such interest, with interest (to the extent allowed by
law and to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the rate borne by the
Securities, such payments to be made ratably to the persons entitled thereto,
and then to the payment to the Holders entitled thereto of the unpaid
principal of and applicable premium on any of the Securities which shall have
become due (other than Securities previously called for redemption for the
payment of which moneys are held pursuant to the provisions of this
Indenture), whether at stated maturity or by redemption, in the order of
their due dates, beginning with the earliest due date, and if the amount
available is not sufficient to pay in full all Securities due on any
particular date, then to the payment thereof ratably, according to the
amounts of principal and applicable premium due on that date, to the Holders
entitled thereto, without any discrimination or privilege;
THIRD: If the principal of the outstanding Securities in respect of which
such moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Securities for principal and any premium and interest thereon, with interest
on the overdue principal and any premium and (to the extent allowed by
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law and to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the rate borne by the Securities;
and in case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities, then to the payment of such principal
and any premium and interest without preference or priority of principal and
any premium over interest, or of interest over principal and any premium or
of any installment of interest over any other installment of interest, or of
any Security over any other Security, ratably to the aggregate of such
principal and any premium and accrued and unpaid interest; and
FOURTH: to the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the same,
or as a court of competent jurisdiction may determine.
SECTION 7.4. PROCEEDINGS BY SECURITYHOLDERS.
(a) No Holder of any Security shall have any right by virtue of
or by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect to such Security
and of the continuance thereof, as hereinabove provided, and unless also
Securityholders of a majority in aggregate principal amount of the Securities
then outstanding affected by such Event of Default shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding.
(b) Notwithstanding any other provision in this Indenture,
however, the rights of any Holder of any Security to receive payment of the
principal of and any premium and interest on such Security, on or after the
respective due dates expressed in such Security or on the applicable
redemption date, or to institute suit for the enforcement of any such payment
on or after such respective dates shall not be impaired or affected without
the consent of such Holder.
SECTION 7.5. PROCEEDINGS BY TRUSTEE. In case of an Event of Default hereunder
the Trustee may in its discretion proceed to protect and enforce the rights
vested in it by this Indenture, by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted to it under this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 7.6. REMEDIES CUMULATIVE AND CONTINUING. All powers and remedies
given by this Article VII to the Trustee or to the Securityholders shall, to
the extent permitted by law, be
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deemed cumulative and not exclusive of any powers and remedies hereof or of
any other powers and remedies available to the Trustee or the Holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance
or observance of the covenants and agreements contained in this Indenture,
and no delay or omission of the Trustee or of any Holder of any of the
Securities in exercising any right or power accruing upon any default
occurring and continuing as aforesaid shall impair any such right or power,
or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to Section 7.4 hereof, every power and remedy given by
this Article VII or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Securityholders.
SECTION 7.7. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF
SECURITYHOLDERS. The Holders of a majority in aggregate principal amount of
the Securities at the time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee;
provided, that (subject to Section 8.1 hereof) the Trustee shall have the
right to decline to follow any such direction if the Trustee being advised by
counsel determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees
or responsible officers shall determine that the action or proceeding so
directed would involve the Trustee in personal liability or would be unduly
prejudicial to the rights of Securityholders not joining in such directions.
The Holders of a majority in aggregate principal amount of the Securities at
the time outstanding may on behalf of all of the Holders of the Securities
waive any past default or Event of Default hereunder and its consequences
except a default in the payment of principal of or any premium or interest on
the Securities. Upon any such waiver the Company, the Trustee and the Holders
of the Securities shall be restored to their former positions and rights
hereunder, respectively, but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default hereunder shall have been waived as
permitted by this Section 7.7, said default or Event of Default shall for all
purposes of the Securities and this Indenture be deemed to have been cured
and to be not continuing.
SECTION 7.8. NOTICE OF DEFAULT. The Trustee shall, within 90 days after the
occurrence of a default, give to all Holders of the Securities, in the manner
provided in Section 14.10, notice of such default, unless such default shall
have been cured before the giving of such notice, the term "default" for the
purpose of this Section 7.8 being hereby defined to be any event which is or
after notice or lapse of time or both would become an Event of Default;
provided that, except in the case of default in the payment of the principal
of or any premium or interest on any of the Securities, or in the payment of
any sinking or purchase fund installments, the Trustee shall be protected in
withholding such notice if and so long as its board of directors or trustees,
executive committee, or a trust committee of directors or trustees or
responsible officers in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities. The Trustee
shall not be charged with knowledge of any Event of Default unless a
responsible officer of the Trustee assigned to the corporate trustee
department of the Trustee shall have actual knowledge of such Event of
Default.
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SECTION 7.9. UNDERTAKING TO PAY COSTS. All parties to this Indenture agree,
and each Holder of any Security by acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but this Section 7.9 shall not apply to
any suit instituted by the Trustee, or to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Securities outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or any premium or interest on any Security on or after the due
date expressed in such Security or the applicable redemption date.
ARTICLE VIII.
CONCERNING THE TRUSTEE
SECTION 8.1. DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture. If an Event of Default has occurred (which has
not been cured or waived), the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provisions of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default
and after the curing or waiving of all Events of Default which may
have occurred
(A) the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements
of this Indenture; but, in the case of any such certificates
or opinions which by any provision hereof are specifically
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required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer or officers of
the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with Section 7.7 hereof relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture.
SECTION 8.2. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise
provided in Section 8.1 hereof:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, note or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof is herein specifically prescribed);
and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
by such exercise;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, note or other paper or document, unless
requested in writing to do so by the Holders of at least a majority in
principal amount of the then outstanding Securities; provided that if the
payment within a reasonable time to the Trustee of the costs,
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expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by this Indenture, the Trustee may
require reasonable indemnity against such expense or liability as a condition
to so proceeding;
(g) no provision of this Indenture shall require the Trustee to
extend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it; and
(h) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or through agents
or attorneys; provided that the Trustee shall not be liable for the conduct
or acts of any such agent or attorney that shall have been appointed in
accordance herewith with due care.
SECTION 8.3. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals contained
herein and in the Securities (except in the certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application
by the Company of any Securities or the proceeds of any Securities
authenticated and delivered by the Trustee in conformity with this Indenture.
The Trustee shall not be responsible for recording or filing this Indenture,
any supplemental indenture, or any financing or continuation statement in any
public office at any time or times.
SECTION 8.4. TRUSTEE, AUTHENTICATING AGENT, PAYING AGENT OR REGISTRAR MAY OWN
SECURITIES. The Trustee and any Authenticating Agent or paying agent in its
individual or other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, Authenticating
Agent or paying agent.
SECTION 8.5. MONEYS TO BE HELD IN TRUST. Subject to Section 4.4 hereof, all
moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee may allow and credit to the Company interest on any money
received hereunder at such rate, if any, as may be agreed upon by the Company
and the Trustee from time to time as may be permitted by law.
SECTION 8.6. COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any law
in regard to the compensation of a trustee of an express trust), and the
Company shall pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
agents, including any Authenticating Agents, and of all persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from
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its negligence or bad faith. The Company also covenants to indemnify the
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee and
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim
or liability. The obligations of the Company under this Section 8.6 to
compensate the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
any particular Securities.
SECTION 8.7. OFFICERS' CERTIFICATE AS EVIDENCE. Whenever in the
administration of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to the taking,
suffering or omitting of any action hereunder, such matter (unless other
evidence in respect thereof is herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such Officers' Certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under this Indenture in
reliance thereon.
SECTION 8.8. CONFLICTING INTEREST OF TRUSTEE. The Trustee shall be subject to
and shall comply with the provisions of Section 310 of the TIA; provided
that, to the extent permitted by law, Firstar Bank Milwaukee, National
Association shall not be deemed to have a conflicting interest for purposes
of Section 310(b) of the TIA because of its capacity as trustee under the
Company's first mortgage indenture. Nothing in this Indenture shall be deemed
to prohibit the Trustee or the Company from making any application permitted
pursuant to such section.
SECTION 8.9. EXISTENCE AND ELIGIBILITY OF TRUSTEE. There shall at all times
be a Trustee hereunder which Trustee shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia (or a corporation or other Person
permitted to act as trustee by the Commission), subject to supervision or
examination by such bodies and authorized under such laws to exercise
corporate trust powers and having a combined capital and surplus of at least
$150,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid authority,
then for the purposes of this Section 8.9, the combined capital and surplus
shall be deemed to be as set forth in its most recent report of condition so
published. No obligor upon the Securities or Person directly or indirectly
controlling, controlled by, or under common control with such obligor shall
serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with this Section 8.9, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.10 hereof.
SECTION 8.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Pursuant to the provisions of this Article, the Trustee may
at any time resign and be discharged of the trusts created by this Indenture
by giving written notice to the Company
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specifying the day upon which such resignation shall take effect, and such
resignation shall take effect immediately upon the later of the appointment
of a successor trustee and such day.
(b) Any Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in principal amount of the then
outstanding Securities or by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is
continuing, and no event has occurred and is continuing that, with the giving
of notice or the lapse of time or both, would become an Event of Default, the
Company may remove any Trustee upon written notice to the Holder of each
Security outstanding and the Trustee.
(d) If at any time (1) the Trustee shall cease to be eligible
in accordance with Section 8.9 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide
Holder for at least six months, (2) the Trustee shall fail to comply with
Section 8.8 hereof after written request therefor by the Company or any such
Holder, or (3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Trustee may be removed forthwith by an
instrument or concurrent instruments in writing filed with the Trustee and
either:
(1) signed by the President or any Vice President of
the Company and attested by the Secretary or an Assistant Secretary
of the Company; or
(2) signed and acknowledged by the Holders of a
majority in principal amount of outstanding Securities or by their
attorneys in fact duly authorized.
(e) Any resignation or removal of the Trustee shall not become
effective until acceptance of appointment by the successor Trustee as
provided in Section 8.11 hereof.
SECTION 8.11. APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) If at any time the Trustee shall resign or be removed, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment
of a Successor Trustee to the Holder of each Security outstanding following
any such appointment.
(c) If no appointment of a successor Trustee shall be made
pursuant to Section 8.11(a) hereof within 60 days after appointment shall be
required, any Securityholder or the resigning Trustee may apply to any court
of competent jurisdiction to appoint a successor Trustee. Said court may
thereupon after such notice, if any, as such court may deem proper and
prescribe, appoint a successor Trustee.
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(d) Any Trustee appointed under this Section 8.11 as a
successor Trustee shall be a bank or trust company eligible under Section 8.9
hereof and qualified under Section 8.8 hereof.
SECTION 8.12. ACCEPTANCE BY SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided in Section 8.11
hereof shall execute, acknowledge and deliver to the Company and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein; but nevertheless, on the written request of the
Company or of the successor Trustee, the Trustee ceasing to act shall, upon
payment of any amounts then due it pursuant to Section 8.6 hereof, execute
and deliver an instrument transferring to such successor Trustee all the
rights and powers of the Trustee so ceasing to act. Upon request of any such
successor Trustee, the Company shall execute any and all instruments in
writing in order more fully and certainly to vest in and confirm to such
successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or
collected by such Trustee to secure any amounts then due it pursuant to
Section 8.6 hereof.
(b) No successor Trustee shall accept appointment as provided
in this Section 8.12 unless at the time of such acceptance such successor
Trustee shall be qualified under Section 8.8 hereof and eligible under
Section 8.9 hereof.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section 8.12, the successor Trustee shall mail notice of its
succession hereunder to all Holders of Securities as the names and addresses
of such Holders appear on the registry books.
SECTION 8.13. SUCCESSION BY MERGER, ETC.
(a) Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided such corporation shall
be otherwise qualified and eligible under this Article.
(b) If at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee, and deliver
such Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities
or in this Indenture provided that the certificates of the Trustee shall
have; provided that the right to adopt
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the certificate of authentication of any predecessor Trustee or authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 8.14. LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR.
The Trustee shall be subject to, and shall comply with, the
provisions of Section 311 of the TIA.
SECTION 8.15. AUTHENTICATING AGENT.
(a) There may be one or more Authenticating Agents appointed by
the Trustee with the written consent of the Company, with power to act on its
behalf and subject to the direction of the Trustee in the authentication and
delivery of Securities in connection with transfers and exchanges under
Sections 2.6, 2.7, 2.8, 2.13, 3.3, and 12.4 hereof, as fully to all intents
and purposes as though such Authenticating Agents had been expressly
authorized by those Sections to authenticate and deliver Securities. For all
purposes of this Indenture, the authentication and delivery of Securities by
any Authenticating Agent pursuant to this Section 8.15 shall be deemed to be
the authentication and delivery of such Securities "by the Trustee." Any such
Authenticating Agent shall be a bank or trust company or other Person of the
character and qualifications set forth in Section 8.9 hereof.
(b) Any corporation into which any Authenticating Agent may 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 trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 8.15, without the execution or filing
of any paper or any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
(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 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 under this Section 8.15, the Trustee may, with the written
consent of the Company, appoint a successor Authenticating Agent, and upon so
doing shall give written notice of such appointment to the Company and shall
mail, in the manner provided in Section 14.10, notice of such appointment to
the Holders of Securities.
(d) The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services, and the Trustee shall
be entitled to be reimbursed for such payments, in accordance with Section
8.6 hereof.
(e) Sections 8.2, 8.3, 8.6, 8.7 and 8.9 hereof shall be
applicable to any Authenticating Agent.
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ARTICLE IX.
CONCERNING THE SECURITYHOLDERS
SECTION 9.1. ACTION BY SECURITYHOLDERS. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action, the fact that at the time of
taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments
of similar tenor executed by such Securityholders in person or by agent or
proxy appointed in writing, (b) by the record of such Securityholders voting
in favor thereof at any meeting of Securityholders duly called and held in
accordance with Article X hereof, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of Securityholders.
SECTION 9.2. PROOF OF EXECUTION BY SECURITYHOLDERS.
(a) Subject to Sections 8.1, 8.2 and 10.5 hereof, proof of the
execution of any instruments by a Securityholder or the agent or proxy for
such Securityholder shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The ownership of
Securities shall be proved by the register for the Securities maintained by
the Trustee.
(b) The record of any Securityholders' meeting shall be proven
in the manner provided in Section 10.6 hereof.
SECTION 9.3. WHO DEEMED ABSOLUTE OWNERS. Subject to Sections 2.4(f) and 9.1
hereof, the Company, the Trustee, any paying agent and any Authenticating
Agent shall deem the person in whose name any Security shall be registered
upon the register for the Securities to be, and shall treat such person as,
the absolute owner of such Security (whether or not such Security shall be
overdue) for the purpose of receiving payment of or on account of the
principal and premium, if any, and interest on such Security, and for all
other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Authenticating Agent shall be affected by any notice to the contrary.
All such payments shall be valid and effectual to satisfy and discharge the
liability upon any such Security to the extent of the sum or sums so paid.
SECTION 9.4. COMPANY-OWNED SECURITIES DISREGARDED. In determining whether the
Holders of the requisite aggregate principal amount of outstanding Securities
have concurred in any direction, consent or waiver under this Indenture,
Securities which are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that, for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities which the Trustee
knows are so owned shall be so disregarded. Securities so owned which have
been pledged in good faith to third parties may be regarded as outstanding
for the purposes of this Section 9.4 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to take action with
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respect to such Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute
as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
SECTION 9.5. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. Except as may be
otherwise required in the case of a Global Security by the applicable rules
and regulations of the Depository, at any time prior to the taking of any
action by the Holders of the percentage in aggregate principal amount of the
Securities specified in this Indenture in connection with such action, any
Holder of a Security, which has been included in the Securities the Holders
of which have consented to such action, may, by filing written notice with
the Trustee at the corporate trust office of the Trustee and upon proof of
ownership as provided in Section 9.2(a) hereof, revoke such action so far as
it concerns such Security. Except as aforesaid, any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange, substitution or upon registration of transfer therefor,
irrespective of whether or not any notation thereof is made upon such
Security or such other Securities.
SECTION 9.6. RECORD DATE FOR SECURITYHOLDER ACTS. If the Company shall
solicit from the Securityholders any request, demand, authorization,
direction, notice, consent, waiver or other act, the Company may, at its
option, by Board Resolution, fix in advance a record date for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other act, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other act may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purpose of determining whether
Holders of the requisite aggregate principal amount of outstanding Securities
have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for that
purpose the outstanding Securities shall be computed as of the record date;
provided that no such request, demand, authorization, direction, notice,
consent, waiver or other act by the Securityholders on the record date shall
be deemed effective unless it shall become effective pursuant to this
Indenture not later than six months after the record date. Any such record
date shall be at least 30 days prior to the date of the solicitation to the
Securityholders by the Company.
ARTICLE X.
SECURITYHOLDERS' MEETING
SECTION 10.1. PURPOSES OF MEETINGS. A meeting of Securityholders may be
called at any time and from time to time pursuant to this Article X for any
of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any Event
of Default hereunder and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to Article VII;
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(b) to remove the Trustee pursuant to Article VIII;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 12.2 hereof; or
(d) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of the
Securities, as the case may be, under any other provision of this Indenture
or under applicable law.
SECTION 10.2. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call a
meeting of Holders of Securities to take any action specified in Section 10.1
hereof, to be held at such time and at such place as the Trustee shall
determine. Notice of every such meeting of Securityholders, setting forth the
time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of the Securities that
may be affected by the action proposed to be taken at such meeting in the
manner provided in Section 14.10 hereof. Such notice shall be given not less
than 20 nor more than 90 days prior to the date fixed for such meeting.
SECTION 10.3. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS. If at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10%
in aggregate principal amount of the Securities then outstanding, shall have
requested the Trustee to call a meeting of Securityholders, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Securityholders may determine the time and the place for such meeting and may
call such meeting to take any action authorized in Section 10.1 hereof, by
giving notice thereof as provided in Section 10.2 hereof.
SECTION 10.4. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meetings of Securityholders a Person shall (a) be a Holder of one or more
Securities affected by the action proposed to be taken or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of one or more
such Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote
at such meeting and their counsel and any representatives (including
employees) of the Trustee and its counsel and any representatives (including
employees) of the Company and its counsel.
SECTION 10.5. REGULATIONS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders in regard to proof of the holding of Securities
and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by the Securityholders
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as provided in Section 10.3 hereof, in which case the Company or
Securityholders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by the Holders of a majority in aggregate
principal amount of the Securities present in person or by proxy at the
meeting.
(c) Subject to Section 9.4 hereof, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by such Securityholder;
provided that no vote shall be cast or counted at any meeting in respect of
any Security ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Securities held by such chairman or instruments in writing as aforesaid duly
designating such chairman as the person to vote on behalf of other
Securityholders. At any meeting of Securityholders duly called pursuant to
Section 10.2 or 10.3 hereof, the presence of persons holding or representing
Securities in an aggregate principal amount sufficient to take action on any
business for the transaction for which such meeting was called shall
constitute a quorum. Any meeting of Securityholders duly called pursuant to
Section 10.2 or 10.3 hereof may be adjourned from time to time by the Holders
of a majority in aggregate principal amount of the Securities present in
person or by proxy at the meeting, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
SECTION 10.6. VOTING. The vote upon any resolution submitted to any meeting
of Securityholders shall be by written ballots on which shall be subscribed
the signatures of the Holders of Securities or of their representatives by
proxy and the principal amount of Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of such meeting of Securityholders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 10.2 hereof. The record shall show
the aggregate principal amount of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee and the Trustee shall have the ballots taken
at the meeting attached to such duplicate. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
SECTION 10.7. RIGHTS OF TRUSTEE OR SECURITYHOLDERS NOT DELAYED. Nothing in
this Article X shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Securityholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee
or to the Holders of Securities under any of the provisions of this Indenture
or of the Securities.
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ARTICLE XI.
CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
SECTION 11.1. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS. The
Company shall not consolidate with or merge into any other corporation or
sell, or otherwise dispose all or substantially all of its assets unless (i)
the corporation formed by such consolidation or into which the Company is
merged or the Person which receives all or substantially all of the assets
pursuant to such sale, transfer or other disposition shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of the
principal of and premium and interest on all of the Securities and the
performance of every covenant of this Indenture on the part of the Company to
be performed or observed and (ii) the Company or such successor corporation
or Person, as the case may be, shall not, immediately after such
consolidation or merger, or such sale or disposition, be in default in the
performance of any such covenant. For purposes of this Article XI the phrase
"ALL OR SUBSTANTIALLY ALL OF ITS ASSETS" shall mean 50% or more of the total
assets of the Company as shown on the balance sheet of the Company as of the
end of the calendar year immediately preceding the day of the year in which
such determination is made and nothing in this Indenture shall prevent or
hinder the Company from selling, transferring or otherwise disposing during
any calendar year (in one transaction or a series of transactions) less than
50% of the amount of its total assets as shown on the balance sheet of the
Company as of the end of the immediately preceding calendar year.
SECTION 11.2. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation or
merger, or any sale, transfer or other disposition of all or substantially
all of the assets of the Company in accordance with Section 11.1 hereof, the
successor corporation formed by such consolidation or into which the Company
is merged or to which such sale, transfer or other disposition is made shall
succeed to, and be substituted for and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and the Company shall be
released from all obligations hereunder.
ARTICLE XII.
SUPPLEMENTAL INDENTURES
SECTION 12.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
(a) The Company, when authorized by Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or
questions arising under this Indenture as may be necessary or
desirable, and not inconsistent with this Indenture or prejudicial to
the interests of the Holders, for the purpose of supplying any
omission, curing any ambiguity, or curing, correcting or supplementing
any defective or inconsistent provision;
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(2) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security outstanding created prior to
the execution of such supplemental indenture which is entitled to the
benefit of such provision or such change or elimination is applicable
only to Securities issued after the effective date of such change or
elimination;
(3) to establish the form of Securities as permitted by
Section 2.1 hereof or to establish or reflect any terms of any Security
determined pursuant to Section 2.5 hereof;
(4) to evidence the succession of another corporation to
the Company, and the assumption by any such successor of the covenants
of the Company herein and in the Securities;
(5) to grant to or confer upon the Trustee for the
benefit of the Holders any additional rights, remedies, powers or
authority;
(6) to permit the Trustee to comply with any duties
imposed upon it by law;
(7) to specify further the duties and responsibilities
of, and to define further the relationships among the Trustee, any
Authenticating Agent and any paying agent;
(8) to add to the covenants of the Company for the
benefit of the Holders, to add security for the Securities or to
surrender a right or power conferred on the Company herein; and
(9) to make any other change that is not prejudicial to
the Trustee or the Holders.
(b) The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any property thereunder, but
the Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
(c) Any supplemental indenture authorized by this Section 12.1 may
be executed by the Company and the Trustee without the consent of the Holders of
any of the Securities at the time outstanding, notwithstanding any of the
provisions of Section 12.2 hereof.
SECTION 12.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
(a) With the consent (evidenced as provided in Section 9.1 hereof)
of the Holders of a majority in aggregate principal amount of the Securities at
the time outstanding, the Company, when authorized by Board Resolution, and the
Trustee may from time to time and at any time
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enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Securityholders; provided that no such
supplemental indenture shall:
(1) change the maturity date of any Security, or reduce
the rate or extend the time of payment of interest thereon, or reduce
the principal amount thereof or any premium thereon, or change the coin
or currency in which the principal of any Security or any premium or
interest thereon is payable, or change the date on which any Security
may be redeemed or repaid at the option of the holder thereof or
adversely affect the rights of the Securityholders to institute suit
for the enforcement of any payment of principal of or any premium or
interest on any Security, in each case without the consent of the
Holder of each Security so affected; or
(2) modify this Section 12.2(a) or reduce the aforesaid
percentage of Securities, the Holders of which are required to consent
to any such supplemental indenture or to reduce the percentage of
Securities, the Holders of which are required to waive Events of
Default, in each case, without the consent of the Holders of all of the
Securities then outstanding.
(b) Upon the request of the Company, accompanied by a copy of the
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
(c) It shall not be necessary for the consent of the Holders of
Securities under this Section 12.2 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
(d) Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to this Section 12.2, the Trustee shall give
notice in the manner provided in Section 14.10 hereof, setting forth in general
terms the substance of such supplemental indenture, to all Securityholders. Any
failure of the Trustee to give such notice or any defect therein shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 12.3. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL
INDENTURES. Any supplemental indenture executed pursuant to this Article XII
shall comply with the TIA. Upon the execution of any supplemental indenture
pursuant to this Article XII, the Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Securityholders shall thereafter be
determined, exercised and
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enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 12.4. NOTATION ON SECURITIES. Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article XII
may bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall so determine, new
Securities so modified as approved by the Trustee and the Board of Directors
with respect to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Securities then
outstanding.
SECTION 12.5. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED
TRUSTEE. The Trustee, subject to Sections 8.1 and 8.2 hereof, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article XII.
ARTICLE XIII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.1. INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS. No recourse
for the payment of the principal of or any premium or interest on any Security,
or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company, contained in
this Indenture or in any supplemental indenture, or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or any successor corporation, either directly or through
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Securities.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
SECTION 14.1. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the covenants,
stipulations, promises and agreements made by the Company in this Indenture
shall bind its successors and assigns whether so expressed or not.
SECTION 14.2. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or proceeding by
any provision of this Indenture authorized or required to be done or performed
by any board, committee or officer of the Company shall and may be done and
performed with like force and
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<PAGE>
effect by the like board, committee or officer of any corporation that shall
at the time be the lawful successor of the Company.
SECTION 14.3. NOTICES.
(a) Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the
Securityholders on the Company may be given or served by being deposited postage
prepaid in a post office letter box addressed (until another address is filed by
the Company with the Trustee) at the principal executive offices of the Company,
to the attention of the Secretary. Any notice, direction, request or demand by
any Securityholder or the Company to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the corporate trust office of the Trustee, Attention: Vice President,
Corporate Trust Department.
(b) The Company shall provide any notices required under this
Indenture by publication, but only to the extent that such publication is
required by the TIA, the rules and regulations of the Commission or any
securities exchange upon which any series of Securities is listed.
SECTION 14.4. GOVERNING LAW. This Indenture and each Security shall be deemed to
be a contract made under the laws of the State of Wisconsin, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 14.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
(a) Upon any application or demand by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenants compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates delivered pursuant
to Section 5.5 hereof) shall include (1) a statement that each Person making
such certificate or opinion has read such covenant or condition and the
definitions relating thereto; (2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of each such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with.
(c) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or
47
<PAGE>
covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
(d) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel delivered under the
Indenture may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such person knows, or in the exercise of
reasonable care should know, that the certificate or opinion of representations
with respect to such matters are erroneous. Any opinion of counsel delivered
hereunder may contain standard exceptions and qualifications satisfactory to the
Trustee.
(e) Any certificate, statement or opinion of any officer of the
Company, or of counsel, may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an independent
public accountant or firm of accountants, unless such officer or counsel, as the
case may be, knows that the certificate or opinions or representations with
respect to the accounting matters upon which the certificate, statement or
opinion of such officer or counsel may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous. Any
certificate or opinion of any firm of independent public accountants filed with
the Trustee shall contain a statement that such firm is independent.
(f) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 14.6. BUSINESS DAYS. Unless otherwise provided pursuant to Section
2.5(c) hereof, in any case where the date of maturity of the principal of or any
premium or interest on any Security or the date fixed for redemption of any
Security is not a Business Day, then payment of such principal or any premium or
interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and affect as if made on the date of maturity
or the date fixed for redemption, and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal of the Security is required to be paid.
SECTION 14.7. TRUST INDENTURE ACT TO CONTROL. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the TIA, such required
provision of the TIA shall govern.
SECTION 14.8. TABLE OF CONTENTS, HEADINGS, ETC. The table of contents and the
titles and headings of the articles and sections of this Indenture have been
inserted for convenience of
48
<PAGE>
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 14.9. EXECUTION IN COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 14.10. MANNER OF MAILING NOTICE TO SECURITYHOLDERS. Any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or the Company to or on the Holders of Securities, as the
case may be, shall be given or served by first-class mail, postage prepaid,
addressed to the Holders of such Securities at their last addresses as the same
appear on the register for the Securities referred to in Section 2.6, and any
such notice shall be deemed to be given or served by being deposited in a post
office letter box in the form and manner provided in this Section 14.10. In case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give notice to any Holder by mail, then such
notification to such Holder as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 14.11. APPROVAL BY TRUSTEE OF EXPERT OR COUNSEL. Wherever the Trustee is
required to approve an Expert or counsel who is to furnish evidence of
compliance with conditions precedent in this Indenture, such approval by the
Trustee shall be deemed to have been given upon the taking of any action by the
Trustee pursuant to and in accordance with the certificate or opinion so
furnished by such Expert or counsel.
49
<PAGE>
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this Indenture to
be signed and acknowledged by one of its Vice Presidents, and attested by its
Secretary, and FIRSTAR BANK MILWAUKEE, NATIONAL ASSOCIATION has caused this
Indenture to be signed and acknowledged by one of its Vice Presidents, and
attested by one of its authorized officers, as of the day and year first written
above.
NORTHERN STATES POWER COMPANY
By
ATTEST: Roger D. Sandeen
Vice President and Treasurer
John P. Moore, Jr., CORPORATE SECRETARY
FIRSTAR BANK MILWAUKEE, NATIONAL
ASSOCIATION, AS TRUSTEE
By
ATTEST: -----------------------------
----------------
50
<PAGE>
EXHIBIT A
FORM OF GLOBAL SECURITY
REGISTERED REGISTERED
THIS SECURITY IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE
DEPOSITORY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY,
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY
TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE
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., 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
(INCORPORATED UNDER THE LAWS OF THE STATE OF WISCONSIN)
__% DEBT SECURITY, SERIES DUE _______
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
NORTHERN STATES POWER COMPANY, a corporation of the State of Wisconsin
(the "COMPANY"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Security has two or more Original Issue
Dates, interest shall, beginning on each
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<PAGE>
such Original Issue Date, begin to accrue for that part of the principal
amount to which that Original Issue Date is applicable) set forth above or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually in arrears on the _____ and _____ in each
year, commencing on the first such Interest Payment Date succeeding the
applicable Original Issue Date set forth above, at the per annum Interest
Rate set forth above, until the principal hereof is paid or made available
for payment. No interest shall accrue on the Maturity Date, so long as the
principal amount of this Global Security is paid on the Maturity Date. The
interest so payable and punctually paid or duly provided for on any such
Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security is registered at the close of business on
the Regular Record Date for such interest, which shall be the ________ or
_______, as the case may be, next preceding such Interest Payment Date;
provided, that the first Interest Payment Date for any part of this Security,
the Original Issue Date of which is after a Regular Record Date but prior to
the applicable Interest Payment Date, shall be the Interest Payment Date
following the next succeeding Regular Record Date; and provided, that
interest payable on the Maturity Date set forth above or, if applicable, upon
redemption or acceleration, shall be payable to the Person to whom principal
shall be payable. Except as otherwise provided in the Indenture (as defined
below), any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
shall be paid to the Person in whose name this Security is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to
Securityholders not more than fifteen days or fewer than ten days prior to
such Special Record Date. On or before Noon, New York City time, or such
other time as shall be agreed upon between the Trustee and the Depository, of
the day on which such payment of interest is due on this Global Security
(other than maturity), the Trustee shall pay to the Depository such interest
in same day funds. On or before Noon, New York City time, or such other time
as shall be agreed upon between the Trustee and the Depository, of the day on
which principal, interest payable at maturity and premium, if any, is due on
this Global Security and following receipt of the necessary funds from the
Company, the Trustee shall deposit with the Depository the amount equal to
the principal, interest payable at maturity and premium, if any, by wire
transfer into the account specified by the Depository. As a condition to the
payment, on the Maturity Date or upon redemption or acceleration, of any part
of the principal and applicable premium of this Global Security, the
Depository shall surrender, or cause to be surrendered, this Global Security
to the Trustee, whereupon a new Global Security shall be issued to the
Depository.
This Global Security is a global security in respect of a duly
authorized issue of Debt Securities, Series (the "SECURITIES OF THIS SERIES",
which term includes any Global Securities representing such Securities) of the
Company issued and to be issued under an Indenture dated as of _____ __, 1999
between the Company and Firstar Bank Milwaukee, National Association, as trustee
(herein called the "TRUSTEE", which term includes any successor Trustee under
the Indenture) and indentures supplemental thereto (collectively, the
"INDENTURE"). Under the Indenture, one or more series of Securities may be
issued and, as used herein, the term "Securities" refers to the Securities of
this Series and any other outstanding series of Securities. Reference is hereby
made for a more complete statement of the respective rights, limitations of
rights, duties and immunities under the Indenture of the Company, the Trustee
and the Securityholders and of the terms upon which the Securities are and are
to be authenticated and delivered. This Global Security has been issued in
respect of the series designated on the first page hereof, limited in aggregate
principal amount to $ .
A-2
<PAGE>
Each Security of this Series shall be dated and issued as of the date
of its authentication by the Trustee and shall bear an Original Issue Date or
Dates. Each Security or Global Security issued upon transfer, exchange or
substitution of such Security or Global Security shall bear the Original Issue
Date or Dates of such transferred, exchanged or substituted Security or Global
Security, as the case may be.
[As applicable, one of the following two sentences: This Global
Security may not be redeemed prior to , . This Global Security
is not redeemable prior to the Maturity Date set forth on the first page
hereof.] [If applicable: On or after , , this Global
Security is redeemable in whole or in part in increments of $1,000 (provided
that any remaining principal amount of this Global Security shall be at least
$100,000) at the option of the Company at the following redemption prices
(expressed as a percentage of the principal amount to be redeemed) plus accrued
interest to the redemption date:
REDEMPTION PERIODS REDEMPTION PRICES
------------------ -----------------
Notice of redemption will be given by mail to Holders of Securities of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of this
Global Security in part only, a new Global Security or Securities of like tenor
and series for the unredeemed portion hereof will be issued in the name of the
Securityholder hereof upon the surrender hereof.]
Interest payments for this Global Security shall be computed and paid
on the basis of a 360-day year of twelve 30-day months. In any case where any
Interest Payment Date or date on which the principal of this Global Security is
required to be paid is not a Business Day, then payment of principal, premium or
interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on such Interest Payment
Date or date on which the principal of this Global Security is required to be
paid and, in the case of timely payment thereof, no interest shall accrue for
the period from and after such Interest Payment Date or the date on which the
principal of this Global Security is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Securities (except for certain obligations including obligations
to register the transfer or exchange of Securities, replace stolen, lost or
mutilated Securities, maintain paying agencies and hold monies for payment in
trust, all as set forth in the Indenture) if the Company deposits with the
Trustee money, U.S. Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms will provide money,
or a combination of money and U.S. Government Obligations, in any event in an
amount sufficient, without reinvestment, to pay all the principal of and any
premium and interest on the Securities on the dates such payments are due in
accordance with the terms of the Securities.
A-3
<PAGE>
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Securityholders under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Securities. Any such consent or
waiver by the Holder of this Global Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Global Security and of any
Security issued upon the registration of transfer hereof or in exchange therefor
or in lieu thereof whether or not notation of such consent or waiver is made
upon the Security.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Securities will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default with respect to such Securities, the Holders of not less than a majority
in principal amount of the outstanding Securities affected by such Event of
Default shall have made written request and offered reasonable indemnity to the
Trustee to institute such proceeding as Trustee and the Trustee shall have
failed to institute such proceeding within 60 days; PROVIDED, HOWEVER, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Security on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Global Security at the times, places and rates and
the coin or currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, this Global Security may be transferred only as permitted by the
legend hereto.
If at any time the Depository for this Global Security notifies the
Company that it is unwilling or unable to continue as Depository for this Global
Security or if at any time the Depository for this Global Security shall no
longer be eligible or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depository with respect to this Global Security. If a
successor Depository for this Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election to issue this Security in global form
shall no longer be effective with respect to this Global Security and the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of this Series in exchange
for this Global Security, will authenticate and deliver individual Securities of
this Series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of this Global Security.
The Company may at any time and in its sole discretion determine that
all Securities of this Series (but not less than all) issued or issuable in the
form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event, the
A-4
<PAGE>
Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of individual Securities of this Series in
exchange for such Global Security, shall authenticate and deliver, individual
Securities of this Series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global
Security or Securities in exchange for such Global Security or Securities.
Under certain circumstances specified in the Indenture, the Depository
may be required to surrender any two or more Global Securities which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depository a Global Security in
principal amount equal to the aggregate principal amount of, and with all terms
identical to, the Global Securities surrendered thereto and that shall indicate
all Original Issue Dates and the principal amount applicable to each such
Original Issue Date.
The Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
Unless the certificate of authentication hereon has been executed by
the Trustee, directly or through an Authenticating Agent by manual signature of
an authorized officer, this Global Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture unless
otherwise indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NORTHERN STATES POWER COMPANY
By:
----------------------------------------
Dated:
Title:
-------------------------------------
Attest:
------------------------------------
Title:
-------------------------------------
A-5
<PAGE>
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Security is one of the Securities of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
FIRSTAR BANK MILWAUKEE, NATIONAL
ASSOCIATION, AS TRUSTEE
By:
------------------------------------------
AUTHORIZED OFFICER
A-6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT-- _____ Custodian ________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN-- as joint tenants with right of
survivorship and not as tenants in common ------------------------------
State
Additional abbreviations may also be used
though not in the above list.
-------------------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- ----------------------------------------------
the within security and all rights thereunder,
hereby irrevocably constituting and
appointing ____________ attorney to
transfer said security on the books of the
Company, with full power of substitution in
the premises.
Dated:
----------------------------------------
----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within instrument in every particular, without
alteration or enlargement or any change whatever.
A-7
<PAGE>
EXHIBIT B
FORM OF SECURITY
REGISTERED REGISTERED
NORTHERN STATES POWER COMPANY
(INCORPORATED UNDER THE LAWS OF THE STATE OF WISCONSIN)
___% DEBT SECURITY, SERIES DUE _______
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
NORTHERN STATES POWER COMPANY, a corporation of the State of Wisconsin
(the "COMPANY"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date set forth above or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on
and in each year, commencing on the first such Interest
Payment Date succeeding the Original Issue Date set forth above, at the per
annum Interest Rate set forth above, until the principal hereof is paid or
made available for payment. No interest shall accrue on the Maturity Date, so
long as the principal amount of this Security is paid in full on the Maturity
Date. The interest so payable and punctually paid or duly provided for on any
such Interest Payment Date will, as provided in the Indenture (as defined
below), be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest, which
shall be the or , as the case may be, next preceding such
Interest Payment Date; provided that the first Interest Payment Date for any
Security, the Original Issue Date of which is after a Regular Record Date but
prior to the applicable Interest Payment Date, shall be the Interest Payment
Date following the next succeeding Regular Record Date; and provided, that
interest payable on the Maturity Date set forth above or, if applicable, upon
redemption or acceleration, shall be payable to the Person to whom principal
shall be payable. Except as otherwise provided in the Indenture (referred to
on the reverse hereof), any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and shall be paid to the Person in whose name this Security is
registered at the close of business on a Special Record Date for the payment
of such defaulted interest to be fixed by the Trustee, notice whereof shall
be given to Securityholders not more than fifteen days nor fewer than ten
days prior to such
B-1
<PAGE>
Special Record Date. Principal, applicable premium and interest due at the
maturity of this Security shall be payable in immediately available funds
when due upon presentation and surrender of this Security at the corporate
trust office of the Trustee or at the authorized office of any paying agent
in the Borough of Manhattan, the City and State of New York. Interest on this
Security (other than interest payable at maturity) shall be paid by check in
clearinghouse funds to the Holder as its name appears on the register;
provided, that if the Trustee receives a written request from any Holder of
Securities (as defined below), the aggregate principal amount of all of which
having the same Interest Payment Date as this Security equals or exceeds
$10,000,000, on or prior to the applicable Regular Record Date, interest on
the Security shall be paid by wire transfer of immediately available funds to
a bank within the continental United States designated by such Holder in its
request or by direct deposit into the account of such Holder designated by
such Holder in its request if such account is maintained with the Trustee or
any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent by manual signature of an authorized officer, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NORTHERN STATES POWER COMPANY
By:
-----------------------------------------
Dated:
Title:
--------------------------------------
Attest:
-------------------------------------
Title:
--------------------------------------
B-2
<PAGE>
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Security is one of the Securities of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
FIRSTAR BANK MILWAUKEE, NATIONAL
ASSOCIATION, AS TRUSTEE
By:
-------------------------------------------
AUTHORIZED OFFICER
B-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
NORTHERN STATES POWER COMPANY
___% DEBT SECURITIES, SERIES DUE ____
This Security is one of a duly authorized issue of Debt Securities,
Series (the "SECURITIES OF THIS SERIES") of the Company issued and to be issued
under an Indenture dated as of _____ __, 1999, between the Company and Firstar
Bank Milwaukee, National Association, as trustee (herein called the "TRUSTEE",
which term includes any successor Trustee under the Indenture) and indentures
supplemental thereto (collectively, the "INDENTURE"). Under the Indenture, one
or more series of Securities may be issued and, as used herein, the term
"Securities" refers to the Securities of this Series and any other outstanding
series of Securities. Reference is hereby made for a more complete statement of
the respective rights, limitations of rights, duties and immunities under the
Indenture of the Company, the Trustee and the Security holders and of the terms
upon which the Securities are and are to be authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $___________.
[As applicable, one of the following two sentences: This Security may
not be redeemed prior to , . This Security is not redeemable prior
to the Maturity Date set forth on the face hereof.] [If applicable: On or after
, , this Security is redeemable in whole or in part in
increments of $1,000 (provided that any remaining principal amount of this
Security shall be at least $1,000) at the option of the Company at the following
redemption prices (expressed as a percentage of the principal amount to be
redeemed) plus accrued interest to the redemption date:
REDEMPTION PERIODS REDEMPTION PRICES
------------------ -----------------
Notice of redemption will be given by mail to Holders of Securities of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of this
Security in part only, a new Security or Securities of this Series of like tenor
for the unredeemed portion hereof will be issued in the name of the
Securityholder hereof upon the surrender hereof.
Interest payments for this Security shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. In any case where any Interest
Payment Date or the date on which the principal of this Security is required to
be paid is not a Business Day, then payment of principal, premium or interest
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on such Interest Payment Date or
the date on which the principal of this Security is required to be paid, and, in
the case of timely payment thereof, no interest shall accrue for the period from
and after such Interest Payment Date or the date on which the principal of this
Security is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Securities (except for certain obligations including obligations
to register the transfer or exchange of Securities, replace
B-4
<PAGE>
stolen, lost or mutilated Securities, maintain paying agencies and hold
monies for payment in trust, all as set forth in the Indenture) if the
Company deposits with the Trustee money, U.S. Government Obligations which
through the payment of interest thereon and principal thereof in accordance
with their terms will provide money, or a combination of money and U.S.
Government Obligations, in any event in an amount sufficient, without
reinvestment, to pay all the principal of and any premium and interest on the
Securities on the dates such payments are due in accordance with the terms of
the Securities.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Securityholders under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Securities. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange therefor in lieu thereof
whether or not notation of such consent or waiver is made upon the Security.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Securities will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default with respect to such Securities, the Holders of not less than a majority
in principal amount of the outstanding Securities affected by such Event of
Default shall have made written request and offered reasonable indemnity to the
Trustee to institute such proceeding as Trustee and the Trustee shall have
failed to institute such proceeding within 60 days; PROVIDED, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Security on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
register. Upon surrender of this Security for registration or transfer at the
corporate trust office of the Trustee or such other office or agency as may be
designated by the Company in the Borough of Manhattan, the City and State of New
York, endorsed by or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security registrar, duly executed by the
Holder hereof or the attorney in fact of such Holder duly authorized in writing,
one or more new Securities of this Series of like tenor and of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees.
The Securities of this Series are issuable only in registered form,
without coupons, in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and
B-5
<PAGE>
subject to certain limitations therein set forth, Securities of this Series
are exchangeable for a like aggregate principal amount of Securities of this
Series of like tenor and of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner thereof for
all purposes, whether or not this Security is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT-- _____ Custodian ________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of
survivorship and not as tenants in common
----------------------------------
State
Additional abbreviations may also be used
though not in the above list.
--------------------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- ----------------------------------------------
the within security and all rights thereunder,
hereby irrevocably constituting and
appointing _______________ attorney to
transfer said security on the books of the
Company, with full power of substitution in
the premises.
Dated:
----------------------------------------
----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within instrument in every particular, without
alteration or enlargement or any change whatever.
B-7
<PAGE>
EXHIBIT 5.01
NORTHERN STATES POWER COMPANY
[LETTERHEAD]
August 13, 1999
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 $80,000,000 principal amount
of unsecured debt securities (herein called the Securities). 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 Securities.
2. 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 Securities, (c) the Indenture from the Company to
Firstar Bank Milwaukee, National Association, Trustee, and the
Supplemental Trust Indenture relating to the Securities, are
duly authorized, executed, and delivered, and (d) the
Securities are duly authorized, executed, authenticated, and
delivered, and the consideration for the Securities has been
received by the Company, all in the manner contemplated by the
said Registration Statement, the Securities will be legally
issued and binding obligations of the Company in accordance
with their terms.
Respectfully submitted,
<PAGE>
John D. Wilson
General Counsel
<PAGE>
EXHIBIT 12.01
NORTHERN STATES POWER COMPANY
(A WISCONSIN CORPORATION)
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 12 MONTHS
------------------------------------------------------ ENDED
1994 1995 1996 1997 1998 JUNE 30, 1999
------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
INCOME FROM CONTINUING OPERATIONS 38,545 39,217 38,697 37,417 32,195 36,032
ADD
TAXES BASED ON INCOME
FEDERAL INCOME TAXES (1) 9,366 18,463 19,592 17,492 13,016 16,229
STATE INCOME TAXES (1) 2,711 4,676 4,164 2,326 2,907 3,741
DEFERRED INCOME TAXES - NET (1) 7678 1,838 1,736 4,371 5,405 4,620
INVESTMENT TAX CREDIT ADJUSTMENT - NET (943) (936) (910) (880) (859) (849)
FIXED CHARGES 18,054 19,586 19,324 18,010 19,189 19,285
------ ------ ------ ------ ------ ------
TOTAL EARNINGS 75,411 82,844 82,603 78,736 71,853 79,058
------ ------ ------ ------ ------ ------
------ ------ ------ ------ ------ ------
FIXED CHARGES
INTEREST EXPENSE 17,287 18,818 18,514 16,964 18,362 18,463
AMORTIZATION OF DEBT EXPENSE, PREMIUMS,
AND LOSS ON REACQUIRED DEBT 767 768 810 1,046 827 822
------ ------ ------ ------ ------ ------
TOTAL FIXED CHARGES 18,054 19,586 19,324 18,010 19,189 19,285
------ ------ ------ ------ ------ ------
------ ------ ------ ------ ------ ------
RATIO
EARNINGS TO FIXED CHARGES 4.18 4.23 4.27 4.37 3.74 4.10
------ ------ ------ ------ ------ ------
------ ------ ------ ------ ------ ------
</TABLE>
(1) INCLUDES INCOME TAXES INCLUDED IN MISCELLANEOUS INCOME DEDUCTIONS AND
NON-OPERATING TAXES.
<PAGE>
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby 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 dated February 1, 1999 relating to the financial
statements, which appears in the Company's Annual Report on Form 10-K for the
year ended December 31, 1998. We also consent to the reference to us under
the heading "Experts" in such Registration Statement.
PRICE WATERHOUSE LLP
Minneapolis, Minnesota
August 13, 1999
<PAGE>
Exhibit 23.02
August 13, 1999
NSP Letterhead
Legal Counsel's Consent
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, filed as Exhibit 5.01 to the
Registration Statement.
/s/ John D. Wilson
-------------------------------
John D. Wilson, General Counsel
<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 $80 million principal amount of
secured or unsecured long-term debt securities of the Company, and one or
more amendments (including post-effective amendments) to said Registration
Statement; 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 JEROME L. LARSEN and ROGER D. SANDEEN, 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 any
Registration Statement or amendments thereto relating to the issuance of up
to $80 million principal amount of secured or unsecured long-term 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 3rd day of February, 1999.
/s/ Jerome L. Larsen /s/ Ray A. Larson, Jr.
- --------------------------------- ----------------------------------
Jerome L. Larsen, Principal Executive Ray A. Larson, Jr., Director
Officer and Director
/s/ H. Lyman Bretting /s/ Larry G. Schnack
- --------------------------------- ----------------------------------
H. Lyman Bretting, Director Larry G. Schnack, Director
/s/ Philip M. Gelatt /s/ Loren L. Taylor
- --------------------------------- ----------------------------------
Philip M. Gelatt, Director Loren L. Taylor, Director
STATE OF WISCONSIN )
) ss.
COUNTY OF EAU CLAIRE )
On this 3rd day of February, 1999, 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.
--------------------------------------
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 BANK MILWAUKEE, N.A.
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
WISCONSIN 39-0281225
(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)
FIRSTAR BANK MILWAUKEE, N.A.
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)
P.O. BOX 8
EAU CLAIRE, WISCONSIN 54702
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(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.
Comptroller of the Currency, Washington, D.C.
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:
<TABLE>
<CAPTION>
AS OF AUGUST 5, 1999
COL. A COL. B
<S> <C>
TITLE OF CLASS AMOUNT OUTSTANDING
</TABLE>
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:
<TABLE>
<CAPTION>
AS OF AUGUST 5, 1999
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
NAME OF OWNER TITLE OF CLASS AMOUNT OWNED PERCENTAGE OF
BENEFICIALLY VOTING SECURITIES
REPRESENTED BY
AMOUNT GIVEN
IN COL. C
</TABLE>
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:
<TABLE>
<CAPTION>
AS OF AUGUST 5, 1999
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
NAME OF OWNER TITLE OF CLASS AMOUNT OWNED PERCENTAGE OF
BENEFICIALLY VOTING SECURITIES
REPRESENTED BY
AMOUNT GIVEN
IN COL. C
</TABLE>
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:
<TABLE>
<CAPTION>
AS OF AUGUST 5, 1999
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
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
</TABLE>
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:
<TABLE>
<CAPTION>
AS OF AUGUST 5, 1999
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
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
</TABLE>
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:
<TABLE>
<CAPTION>
AS OF AUGUST 5, 1999
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
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
</TABLE>
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:
<TABLE>
<CAPTION>
AS OF AUGUST 5, 1999
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
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
</TABLE>
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:
<TABLE>
<CAPTION>
AS OF AUGUST 5, 1999
COL. A COL. B COL. C
<S> <C> <C>
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
</TABLE>
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 Bank Milwaukee,
N.A. (f/k/a First Wisconsin National Bank) 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 (f/k/a
First Wisconsin National Bank) (filed herewith).
4. A copy of the existing By-Laws of Firstar Bank Milwaukee, N.A.
(f/k/a First Wisconsin National Bank) (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 (filed herewith).
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Firstar Bank Milwaukee, N.A., a corporation organized and existing
under the laws of the United States, 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 5th day
of August, 1999.
FIRSTAR BANK MILWAUKEE, N.A.
(Trustee)
By: /s/Yvonne Siira
--------------------------------------
YVONNE SIIRA, ASSISTANT VICE PRESIDENT
(Name and title)
By: /s/Pamela Warner
--------------------------------------
PAMELA WARNER, ASSISTANT SECRETARY
(Name and title)
<PAGE>
EXHIBIT 1
ARTICLES OF ASSOCIATION
OF
FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION
AS AMENDED TO AUGUST 17, 1995
AMENDED 9/14/92 FIRST. The title of this Association shall be "Firstar Bank
Milwaukee, N.A., National Association."
SECOND. The place where the main banking house or office of
this Association shall be located, its operations of
discount and deposit carried on, and its general business
conducted, shall be Milwaukee, County of Milwaukee, State of
Wisconsin.
AMENDED 2/27/87 THIRD. The Board of Directors of this Association shall
consist of such number of its shareholders not less than
five nor more than twenty-five, as from time to time shall
be determined by a majority of the votes to which all of its
shareholders are at the time entitled. Each director,
during the full term of his or her directorship, shall own a
minimum of $1,000 aggregate par value of stock of this
Association or a minimum par value, fair market value or
equity interest of $1,000 of stock in the bank holding
company controlling this Association. A majority of the
Board of Directors shall be necessary to constitute a quorum
for the transaction of business. The Board of Directors, by
the vote of a majority of the full Board, may, between
Annual Meetings of the Shareholders, increase the membership
of the Board by not more than two members and by like vote
appoint qualified persons to fill the vacancies created
thereby.
FOURTH. The regular annual meeting of the Shareholders of
this Association shall be held at its main banking house or
other convenient place duly authorized by the Board of
Directors on such day of each year as is specified therefor
in the By-laws.
AMENDED 1/17/67 FIFTH. The amount of authorized capital stock of this
Association shall
<PAGE>
5/13/71 be Seventy-five Million Six Hundred Thousand Dollars
($75,600,000) divided into 2,100,000 shares of common stock
of the par value of Thirty-six ($36.00) each; but said
capital stock may be increased or decreased from time to
time in accordance with the provisions of the laws of the
United States.
2/22/74
1/21/75
10/27/75
1/17/80
2/19/81
3/27/95
8/17/95
No holder of shares of the capital stock of any class of the
Association shall have any preemptive or preferential right
of subscription to any shares of any class of stock of the
Association, whether now or hereafter authorized, or to any
obligations convertible into stock of the Association,
issued or sold, nor any right of subscription to any thereof
other than such, if any, as the Board of Directors, in its
discretion may from time to time determine and at such price
as the Board of Directors may from time to time fix.
The Association may at any time or times authorize and issue
debt obligations, whether or not subordinated, without the
approval of the Shareholders.
AMENDED 2/16/78 SIXTH. The Board of Directors shall appoint one of its
members President of this Association, who shall be Chairman
of the Board, but the Board of Directors may appoint a
Director, in lieu of the President, to be Chairman of the
Board, who shall perform such other duties as may be
designated by the Board of Directors. In the absence of the
Chairman of the Board and or the President of this
Association, the Board of Directors may appoint any one of
the other officers or Directors of this Association to act
as temporary Chairman at a meeting of the Board of Directors
and to preside temporarily thereat; provided that such
temporary Chairman may not, unless he shall be a member of
the Board of Directors, have any right to vote at such
meeting. The Board of Directors shall have the power to
appoint one or more Vice Presidents, a Cashier and such
other officers as may be required to transact the business
of this Association, to fix the salaries to be paid to all
officers of this Association, and to dismiss such officers,
or any of them.
The Board of Directors shall have the power to define the
duties of officers and employees of this Association, to
require bonds from them, and to fix the penalty thereof; to
regulate the manner in which Directors shall be elected or
appointed, and to appoint judges of the election; to make
all by-laws that it may be lawful for them to make for the
general regulation of the business of this Association and
the management of its affairs, and generally to do and
perform all acts that it may be lawful for a Board of
Directors to do and perform.
SEVENTH. This Association shall have succession from the
date of its organization certificate until such time as it
be dissolved by the act of its shareholders in accordance
with the provisions of the banking laws of the United
States, or until its franchise becomes forfeited by reason
of violation of law, or
<PAGE>
until terminated by either a general or a special act of
Congress, or until its affairs be placed in the hands of
a receiver and finally wound up by him.
EIGHTH. The Board of Directors of this Association, or any
three or more shareholders owning, in the aggregate, not
less than ten percent of the stock of this Association, may
call a special meeting of shareholders at any time provided,
however, that, unless otherwise provided by law, not less
than ten days prior to the date fixed for any such meeting,
a notice of the time, place and purpose of the meeting shall
be given by first-class mail, postage prepaid, to all
shareholders of record of this Association at their
respective addresses as shown upon the books of the
Association. These Articles of Association may be amended
at any regular or special meeting of the shareholders by the
affirmative vote of the shareholders owning at least a
majority of the stock of this Association, subject to the
provisions of the banking laws of the United States. The
notice of any shareholders' meeting, at which an amendment
to the Articles of Association of this Association is to be
considered, shall be given as hereinabove set forth.
<PAGE>
EXHIBIT 3
UNITED STATES OF AMERICA
THE STATE OF WISCONSIN
STATE BANKING DEPARTMENT
WHEREAS, the FIRST WISCONSIN NATIONAL BANK, Milwaukee, Wisconsin, has been
granted FIDUCIARY POWERS, as witnessed by certified copy of such permit granted
by the Federal Reserve Board, under Subsection (k) of Section Eleven (11) of the
Federal Reserve Act, and
WHEREAS, said bank has complied with Section 221.04, subsection (6), 220.09
and 223.02 of the Revised Statutes of Wisconsin, by depositing sufficient
securities approved by this Department with the State Treasurer.
NOW, THEREFORE, I, Wm. E. Nuesse, Commissioner of Banks for the State of
Wisconsin, do concur in the permit as granted by the Federal Reserve Board,
authorizing said bank to act as Trustee, Executor, Administrator, Committee of
Estates of Lunatics, and in any other fiduciary capacity granted thereby.
THIS CONCURRENCE OF PERMIT shall be subject to revocation in whole or in
part, should the law relating to the fiduciary powers of national banks be
further restricted, or should the bank exercising these fiduciary powers fail to
comply with any or all provisions of the Statutes of Wisconsin.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and caused my Official
Seal to be affixed. Done at the Hill
Farms State Office Building, in the
City of Madison, this 10th Day of
March, 1967.
/s/ Wm. E. Nuesse
-------------------------------------
Wm. E. Nuesse
Commissioner of Banking
<PAGE>
EXHIBIT 4
F I R S T A R B A N K M I L W A U K E E , N . A .
B Y - L A W S
(AS AMENDED TO JULY 17, 1997)
<PAGE>
ARTICLE I
SHAREHOLDERS
AMENDED: 12/18/75
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders, for the
purpose of electing directors and for the transaction of such other business as
may come before the meeting, shall be held on the third Thursday of February of
each year, at 8:30 o'clock in the morning, unless some other hour shall have
been designated by the Board of Directors. If the election of directors shall
not be held on the date designated herein for any annual meeting of the
shareholders, or at any adjournment thereof, the Board of Directors shall cause
the election to be held at a special meeting of the shareholders as soon
thereafter as conveniently may be.
AMENDED: 6/19/80
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders for any
purpose or purposes, unless otherwise prescribed by the laws of the United
States or the Articles of Association, may be called by the Chairman of the
Executive Committee, the Chairman of the Board, the President or the Board of
Directors, and shall be called by the Secretary upon a written request to him
signed by at least three shareholders owning in the aggregate not less than ten
percent of all outstanding shares of the Association entitled to vote at the
meeting.
SECTION 3. PLACE OF MEETING. The Board of Directors may designate any convenient
place in the City of Milwaukee, Wisconsin, as the place of meeting for any
annual meeting or for any special meeting. If no such designation is made, the
place of meeting shall be the main banking office of the Association in the City
of Milwaukee, Wisconsin. Any meeting may be adjourned to reconvene at any place
in the City of Milwaukee, Wisconsin, designated by vote of a majority of the
shares represented thereat.
AMENDED: 6/19/80
SECTION 4. NOTICE OF MEETING. Unless otherwise provided by the laws of the
United States or the Articles of Association, written notice stating the place,
date and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
or more than fifty days before the date of the meeting, by or at the direction
of the Chairman of the Executive Committee, the Chairman of the Board, the
President, or the Secretary, to each shareholder of record entitled to vote at
such meeting. Such notice shall be deemed to be delivered when deposited in the
United States mail, addressed to the shareholder at his address as it appears on
the stock record book of the Association, with postage thereon prepaid.
SECTION 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the purpose
of determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose, the Board of Directors of the Association may provide
that the stock transfer books shall be closed for stated period but not to
exceed, in any case, fifty days. If the stock transfer books shall be closed for
the purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten days
immediately preceding such
<PAGE>
meeting. In lieu of closing the stock transfer books, the Board of Directors
may fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than fifty days and, in
case of a meeting of shareholders, not less than ten days prior to the date
on which the particular action, requiring such determination of shareholders,
is to be taken. If the stock transfer books are not closed and no record date
is fixed for the determination of shareholders entitled to notice of or to
vote at a meeting of shareholders, or shareholders entitled to receive
payment of a dividend, the close of business on the date on which notice of
the meeting is mailed or on the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be, shall be
the record date for such determination of shareholders. When a determination
of shareholders entitled to vote at any meeting of shareholders has been made
as provided in this Section, such determination shall be applied to any
adjournment thereof except where the determination has been made through the
closing of the stock transfer books and the stated period of closing has
expired.
AMENDED: 6/19/80
SECTION 6. VOTING LISTS. The Secretary shall make, at least ten days before each
meeting of shareholders, a complete list of the shareholders entitled to vote at
such meeting, or any adjournment thereof, arranged in alphabetical order, with
the address of and the number of shares held by each, which list, for a period
of ten days prior to such meeting, shall be kept on file at the office of the
Association and shall be subject to inspection by any shareholder at any time
during usual business hours. Such list shall also be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original stock transfer
books shall be prima facie evidence as to who are the shareholders entitled to
examine such list or transfer books or to vote at any meeting of shareholders.
Failure to comply with the requirements of this Section shall not affect the
validity of any action taken at such meeting.
SECTION 7. QUORUM. Except as otherwise provided by law, a majority of the
outstanding shares of the Association entitled to vote, represented in person or
by proxy, shall constitute a quorum at a meeting of shareholders, and a majority
of votes cast at any meeting at which a quorum is present shall be decisive of
any motion or election. Though less than a quorum of the outstanding shares are
represented at a meeting, a majority of the shares so represented may adjourn
the meeting from time to time without further notice. At such adjourned meeting
at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
AMENDED: 6/19/80
SECTION 8. PROXIES. At all meetings of shareholders, a shareholder entitled to
vote may vote in person or by proxy appointed in writing by the shareholder or
by his duly authorized attorney in fact. Such proxy shall be filed with the
Secretary of the Association before or at the time of the meeting. Unless
otherwise provided in the proxy, a proxy may be revoked at any time before it is
voted, either by written notice filed with the secretary of the meeting or by
oral notice given by the shareholder to the presiding officer during the
meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
SECTION 9. VOTING OF SHARES. Each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders, except for the election of Directors. In all elections of
Directors each shareholder shall have the right to vote the number of shares
owned by him for as many persons as there are Directors to be elected, or to
cumulate such shares and give one
<PAGE>
candidate as many votes as the number of Directors multiplied by the number
of his shares shall equal or to distribute them on the same principle among
as many candidates as he shall elect.
SECTION 10. VOTING OF SHARES BY CERTAIN HOLDERS.
AMENDED: 6/19/80
(a) OTHER CORPORATION. Shares standing in the name of another corporation may
be voted either in person or by proxy, by the president of such corporation, or
any other officer appointed by such president. A proxy executed by any principal
officer of such other corporation or assistant thereto shall be conclusive
evidence of the signer's authority to act, in the absence of express notice to
this Association, given in writing to the Secretary of the designation of some
other person by the Board of Directors or the by-laws of such other corporation.
AMENDED: 6/19/80
(b) LEGAL REPRESENTATIVES AND FIDUCIARIES. Shares held by an administrator,
executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee
for creditors may be voted by him, either in person or by proxy, without a
transfer of such shares into his name, provided that there is filed with the
Secretary before or at the time of the meeting proper evidence of his incumbency
and the number of shares held. Shares standing in the name of a fiduciary may be
voted by him, either in person or by proxy. A proxy executed by a fiduciary
shall be conclusive evidence of the signer's authority to act, in the absence of
express notice to this Association, that such manner of voting is expressly
prohibited or otherwise directed by the document creating the fiduciary
relationship.
(c) PLEDGES. A shareholder whose shares are pledges shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so transferred.
(d) TREASURY STOCK AND SUBSIDIARIES. Neither treasury shares, nor shares held
by another corporation if majority of the shares entitled to vote for the
election of directors of such other corporation is held by this Association,
shall be voted at any meeting or counted in determining the total number of
outstanding shares entitled to vote, but shares of its own issue held by such
other corporation in a fiduciary capacity, may be voted and shall be counted in
determining the total number of outstanding shares entitled to vote.
AMENDED: 6/19/80
(e) MINORS. Shares held by a minor may be voted by such minor in person or
proxy and no such vote shall be subject to disaffirmance or avoidance, unless
prior to such vote the Secretary of the Association has received written notice
or has actual knowledge that such shareholder is a minor.
AMENDED: 6/19/80
<PAGE>
(f) INCOMPETENTS AND SPENDTHRIFTS. Shares held by an incompetent or spendthrift
may be voted by such incompetent or spendthrift in person or by proxy and no
such vote shall be subject to disaffirmance or avoidance, unless prior to such
vote the Secretary of the Association has actual knowledge that such shareholder
has been adjudicated an incompetent or spendthrift or actual knowledge of filing
of judicial proceedings for appointment of a guardian.
AMENDED: 6/19/80
(g) JOINT TENANTS. Shares registered in the names of two or more individuals
who are named in the registration as joint tenants may be voted in person or by
proxy signed by any one or more of such individuals if either (i) no other such
individual or his legal representative is present and claims the right to
participate in the voting of such shares or prior to the vote files with the
Secretary of the Association a contrary written voting authorization or
direction or written denial of authority of the individual present or signing
the proxy proposed to be voted or (ii) all such other individuals are deceased
and the Secretary of the Association has no actual knowledge that the survivor
has been adjudicated not to be the successor to the interests of those deceased.
SECTION 11. WAIVER OF NOTICE OF SHAREHOLDERS. Whenever any notice whatever is
required to be given to any shareholder of the Association under the Article of
Association or By-laws or any provision of law, a waiver thereof in writing,
signed at any time, whether before or after the time of meeting, by the
shareholder entitled to such notice, shall be deemed equivalent to the giving of
such notice; provided that such waiver in respect to any matter of which notice
is required under any provision of law shall contain the same information as
would have been required to be included in such notice, except such waiver need
not set forth the time and place of meeting.
SECTION 12. CHAIRMAN AND SECRETARY OF MEETING. At each meeting of the
shareholders, the shareholders shall elect a Chairman and a Secretary of the
meeting, each of whom shall be either an officer or a shareholder of the
Association.
AMENDED: 6/19/80
SECTION 13. JUDGES OF ELECTIONS. Not less than thirty days prior to the date of
any election of Directors the Board of Directors shall appoint two shareholders
to be the judges of said election has been held the judges shall certify the
results thereof to the Secretary.
AMENDED: 6/19/80
SECTION 14. REPORTS OF MEETINGS. The Secretary of the meeting shall cause the
record of each meeting of shareholders to be kept showing the names of the
shareholders present in person and by proxy, the number of shares held by each
and the number of shares voted on each action. After each such meeting the
Secretary shall forward a report thereof to the Comptroller of the Currency in
the form prescribed by him.
<PAGE>
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Association shall be
managed by its Board of Directors.
AMENDED: 10/19/67; 6/19/80; 1/21/82
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors shall
consist of not less than five nor more than twenty-five persons. The number
of Directors to be elected shall be determined by a majority of the votes
cast by the shareholders at the annual meeting or at a special meeting called
for such purpose; provided that the Board of Directors may, by a vote of the
majority of its members, increase the number of members of the Board as
established by the shareholders by not more than two members. Each Director
shall hold office until the next annual meeting of shareholders and until his
successor shall have been elected, or until his death or until he shall
resign by filing his written resignation with the Secretary. 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 his election.
SECTION 3. OATH. Each person when initially elected or appointed a member of
the Board of Directors shall take the oath of such office in the form
prescribed by the Comptroller of the Currency. No person elected or appointed
a Director shall exercise the functions of such office until he shall have
taken such oath.
SECTION 4. REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held, without other notice than this By-law, immediately after and
at the same place as the annual meeting of shareholders for the purpose of
the Directors taking their oaths, organizing the Board, electing the
Executive Committee, appointing officers of the Association and transacting
such other business as may properly come before the meeting. Additional
regular meetings of the Board of Directors shall be held monthly on such day
and at such hour as the Board of Directors may provide by resolution, without
other notice than such resolutions. When any regular meeting of the Board of
Directors falls upon a holiday, the meeting shall be held on the next
business day unless the Board of Directors shall have previously designated
another day.
AMENDED: 6/19/80
SECTION 5. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Executive Committee,
Chairman of the Board, the President, the Executive Vice President, and shall
be called by the Secretary at the request of three or more Directors.
SECTION 6. PLACE OF MEETING. The Board of Directors (or in the case of a
special meeting called at the request of the Chairman of the Executive
Committee, the Chairman of the Board, the President, the Executive Vice
President, or three or more Directors calling such meeting, the officer of
Directors requesting such call) may designate any convenient place in the
City of Milwaukee, Wisconsin, as the place of meeting for any meeting of the
Board of Directors. If no such designation is made, the place of meeting
shall be the main banking office of the Association in the City of Milwaukee,
Wisconsin.
<PAGE>
AMENDED: 6/19/80
SECTION 7. NOTICE. Notice of any special meeting shall be given by the
Secretary to each Director at least 48 hours previous thereto by orally
presenting such notice to a Director personally, directly or by telephone, or
by written notice delivered personally or mailed to a Director at his
business address, or by telegram. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail so addressed with
postage thereon prepaid (air mail postage as to any Director whose address is
more than 200 airline miles from Milwaukee, Wisconsin). If notice is given by
telegram, such notice shall be deemed to be delivered when the telegram is
delivered to the telegraph company. Whenever any notice whatever is required
to be given to any Director under the provisions of these By-laws or under
the provisions of the Articles of Association or under the provisions of any
statute, a waiver thereof in writing, signed at any time, whether before or
after the time of meeting, by the director entitled to such notice, shall be
deemed equivalent to the giving of such notice. The attendance of a Director
at a meeting shall constitute a waiver of notice of such meeting, except
where a Director attends a meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
SECTION 8. QUORUM. A majority of the members of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the
Board of Directors, but a majority of the Directors present (though less than
such quorum) may adjourn the meeting from time to time without further notice.
SECTION 9. MANNER OF ACTING. The act of the majority of the Directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors, unless the act of greater number is required by law or by the
Articles of Association or these By-laws.
SECTION 10. VACANCIES. Any vacancy occurring in the Board of Directors by
resignation or death or by reason of the increase in the number of authorized
members of the Board as provided at Section 2 of this Article II may be
filled until the next succeeding annual election by appointment pursuant to
the affirmative vote of a majority of the Directors then in office.
AMENDED: 6/19/80
SECTION 11. PRESUMPTION OF ASSENT. A Director of the Association who is
present at a meeting of the Board of Directors or a committee thereof at
which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as Secretary of the meeting before the
adjournment thereof or shall file his written dissent by registered mail to
the Secretary immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favor of such action.
<PAGE>
ARTICLE III
COMMITTEES
AMENDED: 2/19/87
SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors shall, at its regular
meeting held immediately following the annual meeting of shareholders, elect
an Executive Committee consisting of such number of members of the Board, not
less than six nor more than fifteen, as the Board may fix by resolution. The
Chairman of the Board and President shall be members of the Executive
Committee. The Board of Directors shall also elect six or more of its members
to serve as alternate members of the Executive Committee, which alternate
members may be called upon by the Chairman of the Executive Committee to
serve in the absence of any of the regular members. Any vacancy occurring in
the Executive Committee may be filled until the next succeeding annual
election by appointment of the Board of Directors.
The Executive Committee shall be vested with all the authority of the Board
of Directors and, subject to the control of the Board, shall direct the
management of the affairs of the Association in the interim between meetings
of the Board. The Executive Committee may require that it shall approve all
loans and discounts to any individual or entity which equal or exceed such
aggregate amount as the Executive Committee shall keep minutes of all of its
meetings, showing the matters considered and disposed of by it, which minutes
shall be presented to the Board of Directors at its next succeeding regular
meeting.
The Executive Committee shall elect one of its members as Chairman of the
Executive Committee who may, but need not be, the Chairman of the Board of
Directors and/or the President. Such election shall be made annually at the
first meeting of the Executive Committee held after each annual meeting of
the shareholders. The Chairman of the Executive Committee shall hold office
until his successor shall have been duly elected and shall have qualified or
until his death, resignation or removal in the manner hereinafter provided.
The Chairman of the Executive Committee shall appoint a Secretary who need
not be a member of the Executive Committee.
AMENDED: 2/15/79; 7/19/79; 2/19/80; 9/18/80; 11/18/82; 2/19/87; 8/19/93
SECTION 2. RISK EXAMINATION COMMITTEE. The Board of Directors shall, at its
regular meeting held immediately following the annual meeting of
shareholders, elect a Risk Examination Committee consisting of not less than
three members of the Board, none of whom may be officers of the Association,
except where the full Board of Directors comprises the Risk Examination
Committee. The Board of Directors may also elect one or more of its members
to serve as an alternate member or members of the Risk Examination Committee,
which alternate member or members may be called upon by the Chairman of the
Risk Examination Committee to serve in the absence of any of the regular
members.
The Board of Directors shall appoint the Chairman of the Risk Examination
Committee, who shall be a member of such Committee, and a Secretary, who need
not be a member of such Committee.
The Risk Examination Committee shall cause suitable examinations of the
affairs of the Association to be made by auditors responsible only to the
Board of Directors, in order to ascertain whether the Association is in sound
financial condition, and whether adequate internal audit controls and
procedures are maintained. The Risk Examination Committee shall also review
activities that represent significant potential loss of income or assets of
the Association. The Risk Examination Committee shall, in addition, cause
suitable examinations of the Trust Department to be made by such independent
auditors at least
<PAGE>
once during each calendar year and within fifteen months of the last such
audit for the purpose of determining whether the Trust Department has been
administered according to law, the regulations of any governmental regulatory
agency and sound fiduciary principles. The results of each such examination,
together with the results of any examination made by the examining staff of
any governmental regulatory agency, shall be reviewed by the Risk Examination
Committee and reported to the Board of Directors, together with any
recommended changes in the manner of conducting the affairs of the
Association as shall be deemed advisable, and made a part of the records of
the Association.
<PAGE>
AMENDED: 9/18/80; 2/19/87
SECTION 3. TRUST INVESTMENT COMMITTEE. The Board of Directors shall, at its
regular meeting held immediately following the annual meeting of
shareholders, elect a Trust Investment Committee, consisting of such number
of members of the Board, not less than three nor more than fifteen, as the
Board may fix by resolution. The Board of Directors shall also elect six or
more of its members to serve as alternate members of the Trust Investment
Committee, which alternate members may be called upon by the Chairman of the
Board to serve in the absence of any of the regular members.
The Trust Investment Committee shall appoint a Chairman who shall be a member
of such Committee, and a Secretary, who need not be a member of such
Committee.
All investments of trust funds shall be made, retained or disposed of only
with the authorization or approval of the Trust Investment Committee. The
Trust Investment Committee shall, at least annually, review each trust
account to determine the safety and value of its assets and advisability of
retaining or disposing of them. The Trust Investment Committee shall keep
minutes of all of its meetings, showing the disposition of all matters
considered and passed on by it, which minutes shall be presented to the
Executive Committee at its next succeeding regular meeting.
AMENDED: 11/15/73
SECTION 4. OFFICERS' LOAN COMMITTEES. The Executive Committee or the Board of
Directors may appoint such Officers' Loan Committees as it deems appropriate
from time to time, each such Committee shall consist of such number of
officers of the Association as the Executive Committee or the Board of
Directors shall determine by resolution. The Executive Committee or the Board
of Directors may also appoint one or more officers of the Association to
serve as alternate members of such Committees, which alternate members may be
called upon by the Chairman of the Board, President or the Chairman of the
respective Committee to serve in the absence of any of the regular members.
The Executive Committee or the Board of Directors shall designate the person
who shall serve as Chairman of each such Committee and each Committee shall
appoint a Secretary who need not be a member of the Committee.
Each such Officers' Loan Committee shall have such powers to discount and
purchase bills, notes and other evidences of debt, to buy and sell bills of
exchange, to examine and approve loans and discounts held by the Association
as the Executive Committee or the Board of Directors may from time to time
specify by resolution, subject at all times to the control of the Executive
Committee and the Board of Directors. Such Committees shall report their
actions to each regular meeting of the Executive Committee or Board of
Directors, which shall approve or disapprove the report and record such
action in the minutes of their meetings, but no such disapproval shall
adversely affect the interests of any customer or third party in any
transaction or commitment made under the authority of this Section.
ADDED: 11/15/73; 1/20/83
SECTION 5. OTHER COMMITTEES. The Board of Directors or Executive Committee by
resolution may designate one or more additional committees, each committee to
consist of such number of officers and/or directors of the Association as may
be specified in such resolution, provided, however, that a Plan Committee for
any pension plan established by the Association may consist of such officers,
directors,
<PAGE>
and/or employees of the Association as may be designated by the Board. Each
such committee shall have such powers in the management of the business and
affairs of the Association to the extent provided in said resolution as
initially adopted, and as thereafter supplemented or amended by further
resolution adopted by the Executive Committee or Board of Directors, except
action in respect to matters requiring action by the shareholders, Board of
Directors, Executive Committee or other committee established by or pursuant
to these By-laws. The Executive Committee or Board of Directors may specify
one or more alternate member of any such committee who may take the place of
any absent members or members at any meeting of such committee, upon request
by the Chairman of the Board, President or upon request by the chairman of
such committee. Each such committee shall fix its own rules governing the
conduct of its activities and shall report their actions to each regular
meeting of the Executive Committee or Board of Directors, which shall approve
or disapprove the report and record such action in the minutes of their
meetings.
ARTICLE IV
OFFICERS
AMENDED: 2/16/78; 6/19/80; 9/15/88; 3/18/93
SECTION 1. NUMBER AND QUALIFICATIONS. The principal officers of the
Association shall be a Chairman of the Board of Directors, a President, one
or more Executive, Senior and First Vice Presidents, a Cashier, a Trust
Officer, a Comptroller, and a Secretary, each of whom shall be appointed by
the Board of Directors. Such other officers, including Vice Presidents, and
assistant officers as may be deemed necessary may be appointed by the Board
of Directors. Any two or more offices may be held by the same person, except
the offices of President and Cashier, the offices of President and Secretary,
and the offices of President and Vice President. The Chairman of the Board of
Directors and President shall be members of the Board of Directors. Except to
the extent such power is limited by the Board of Directors, any officer
authorized by these By-laws or the Board of Directors to appoint officers may
appoint one or more other officers or assistant officers, and any officer
making such an appointment shall report the appointment to the Board of
Directors at its next regular meeting.
SECTION 2. TERMS OF OFFICE. The officers of the Association shall be
appointed annually by the Board of Directors at the first meeting of the
Board of Directors held after each annual meeting of the shareholders. If
officers shall not be appointed at such meeting, they shall be appointed as
soon thereafter as conveniently may be. Each officer shall hold office until
his successor shall have been duly appointed and shall have qualified or
until his death or until he shall resign or shall have been removed in the
manner hereinafter provided.
SECTION 3. REMOVAL. Any officer or agent appointed by the Board of Directors
or Executive Committee may be removed by the Board of Directors or Executive
Committee, as the case may be, whenever in its judgment the best interests of
the Association will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Appointment shall not of itself create contract rights.
<PAGE>
SECTION 4. VACANCIES. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise shall be filled by the
Board of Directors for the unexpired portion of the term.
AMENDED: 3/18/93
SECTION 5. PRINCIPAL EXECUTIVE OFFICER. The principal executive officer of
the Association shall be either the Chairman of the Board or the President of
the Association, as is designated from time to time by the Board of Directors
by resolution duly adopted by a majority of its members at any regular or
Special Meeting. Subject to the control of the Board of Directors such
principal executive officer shall generally supervise and control all of the
business and affairs of the Association. The principal executive officer
shall have authority, subject to such rules as may be prescribed by the Board
of Directors, to appoint such agents, employees and, in accordance with
Section 1 of this Article, other officers of the Association as he or she
shall deem necessary, to prescribe their powers, duties and compensation, and
to delegate authority to them. Such agents, employees and officers shall hold
office at the discretion of the principal executive officer.
AMENDED: 1/16/69; 2/18/82
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall, when
present, preside at all meetings of the shareholders and the Board of
Directors. The Chairman of the Board shall perform all such duties as may be
prescribed by the Board of Directors from time to time.
AMENDED: 1/16/69; 6/19/80; 2/18/82
SECTION 7. PRESIDENT. The President shall perform all duties incident to the
office of President and such other duties as may be prescribed by the Board
of Directors from time to time. Unless the Board of Directors otherwise
provides, in the absence of the Chairman of the Board or in the event of his
inability or refusal to act, the President shall perform the duties of the
Chairman of the Board, and when so acting shall have all the powers of and be
subject to all the restrictions upon the Chairman of the Board. He may sign
with the Cashier, Secretary, Assistant Cashier or Assistant Secretary, or any
other proper officer of the Association thereunto authorized by the Board of
Directors certificates for shares of the Association.
AMENDED: 2/16/78
SECTION 8. EXECUTIVE VICE PRESIDENT(S). The Executive Vice President(s) shall
consult with the Chairman of the Board and the President regarding the
business and affairs of the Association and shall perform such duties as may
be prescribed by the Chairman of the Board, the President and the Board of
Directors from time to time. In the absence of the President, or in the event
of his inability or refusal to act, the Board of Directors may designate one
Executive Vice President to perform the duties of President and when so
acting said Executive Vice President shall have all of powers of and be
subject to all of the restrictions upon the President.
SECTION 9. THE VICE PRESIDENTS. In the absence of the Chairman of the Board,
the President and the Executive Vice President, or in the event of their
inability or refusal to act, the Vice President (or in the event there be
more than one Vice President, the Vice Presidents in the order designated by
resolution of
<PAGE>
the Board of Directors, or in the absence of any designation, then in the
order of their appointment) shall perform the duties of the Chairman of the
Board and the President (except for presiding at meetings of the
shareholders, of the Board of Directors and of the Executive Committee), and
when so acting shall have all the powers of and be subject to all the
restrictions upon the Chairman of the Board and/or President. Any Vice
President may sign, with the Cashier, certificates for shares of the
Association; and shall perform such other duties as from time to time may be
assigned to him by the Chairman of the Executive Committee, the Chairman of
the Board, the President, or by the Board of Directors.
AMENDED: 6/19/80
SECTION 10. THE CASHIER. The Cashier and the Secretary, or either of them,
shall (a) be custodians of the corporate records and of the seal of the
Association and see that the seal of the Association is affixed to all
documents the execution of which on behalf of the Association under its seal
is duly authorized; and (b) sign with the President, or a Vice President,
certificates for shares of the Association, the issuance of which shall have
been authorized by resolution of the Board of Directors. The Cashier shall
have and may exercise any and all other powers and duties pertaining by law,
regulation or practice, to the officer of Cashier or imposed by these By-laws
and shall perform such other duties as from time to time may be assigned to
him by the Chairman of the Board, the President or by the Board of Directors.
SECTION 11. COMPTROLLER. The Comptroller shall be responsible for the
accuracy and proper maintenance of all accounting records of the Association
in accordance with generally recognized principles of accounting acceptable
to the Board of Directors. He shall prepare and furnish to the Board periodic
reports showing the financial condition and results of operations of the
Association, together with such other information as he may be called upon
from time to time to furnish. The Comptroller shall also perform such other
duties as may be assigned to him directly or indirectly, by the Chairman of
the Board, the President or the Board of Directors. The Comptroller shall be
responsible to the Board of Directors of the Association and shall report to
the Board directly or through the Chairman of the Board.
ADDED: 6/19/80
SECTION 12. THE SECRETARY. The Secretary of the Association shall: (a) keep
the minutes of the shareholders' and of the Board of Directors' meetings in
one or more books provided for that purpose; (b) see that all notices are
duly given in accordance with the provisions of these By-laws or as required
by law; (c) advise all members of the Board of Directors immediately upon
their election as such; (d) along with the Cashier, or either of them, be
custodians of the corporate records and of the seal of the Association and
see that the seal of the Association is affixed to all documents the
execution of which on behalf of the Association under its seal is duly
authorized; (e) keep a register of the post office address of each
shareholder; (f) sign with the President, or a Vice President, certificates
for shares of the Association, the issuance of which shall have been
authorized by resolution of the Board of Directors, as duties of the Cashier.
The Secretary shall perform such other duties as from time to time may be
assigned to him by the Chairman of the Board, the President or by the Board
of Directors.
RENUMBERED: 6/19/80
SECTION 13. ASSISTANTS AND ACTING OFFICERS. The Board of Directors shall have
the power to appoint any person to act as assistant to any officer, or to
perform the duties of such officer whenever for any reason it is
impracticable for such officer to act personally, and such assistant or
acting officer so appointed by
<PAGE>
the Board of Directors shall have the power to perform all the duties of the
office to which he is so appointed to be assistant, or as to which he is so
appointed to act, except as to such power may be otherwise defined or
restricted by the Board of Directors.
ARTICLE V
CERTIFICATES FOR SHARES AND THEIR TRANSFER
AMENDED: 6/19/80
SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares of the
Association shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or Vice
President and by the Cashier, Assistant Cashier, Secretary or Assistant
Secretary. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and the date of
issue, shall be entered on the stock transfer books of the Association. All
certificates surrendered to the Association for transfer shall be cancelled
and no new certificate shall be issued until the former certificate for a
like number of shares shall have been surrendered and cancelled, except that
in case of a lost, destroyed or mutilated certificate a new one may be issued
therefor upon such terms and indemnity to the Association as the Board of
Directors may prescribe.
AMENDED: 6/19/80
SECTION 2. FACSIMILE SIGNATURES AND SEAL. The Seal of the Association on any
certificates for shares may be a facsimile. The signatures of the President
or Vice President, the Cashier or Assistant Cashier and the Secretary or
Assistant Secretary upon a certificate may be facsimiles if the certificate
is countersigned by a transfer agent, or registered by a registrar, other
than the Association itself or an employee of the Association.
AMENDED: 6/19/80
SECTION 3. SIGNATURE BY FORMER OFFICERS. In case any officer, who has signed
or whose facsimile signature has been placed upon any certificate for shares,
shall have ceased to be such officer before such certificate is issued, it
may be issued by the Association with the same effect as if he were such
officer at the date of its issue.
SECTION 4. TRANSFER OF SHARES. Prior to due presentment of a certificate for
shares for registration or transfer the Association may treat the registered
owner of such shares as the person exclusively entitled to vote, to receive
notifications and otherwise to exercise all the rights and powers of an
owner. Where a certificate for shares is presented to the Association with a
request to register for transfer, the Association had no duty to inquire into
adverse claims or has discharged any such duty. The Association may require
reasonable assurance that said endorsements are genuine, effective and in
compliance with such other regulations as may be prescribed under the
authority of the Board of Directors.
<PAGE>
SECTION 5. STOCK REGULATIONS. The Board of Directors shall have the power and
authority to make all such further rules and regulations not inconsistent
with law as it may deem expedient concerning the issue, transfer and
registration of certificates representing shares of the Association.
ARTICLE VI
CONTRACTS
AMENDED: 3/18/76
The Board of Directors may authorize any officer or officers, agent or
agents, to enter into any contract, execute and deliver any instrument in the
name of and on behalf of the Association, execute checks, drafts, bills of
exchange, orders, letters of credit and other obligations of the Association,
transmit and receive funds of the Association, direct the transfer of such
funds by others and enter into agreements which authorize others, on terms
and conditions set forth therein, to transmit, receive and direct transfer of
such funds by telegraphic, telephonic, electronic or other means, and such
authorization may be general or confined to specific instances.
<PAGE>
ARTICLE VII
AMENDMENTS
These By-laws may be altered, amended or repealed and new By-laws may be adopted
by the shareholders or Board of Directors by majority vote at any regular
meeting or special meeting noticed for such purpose. Any By-law adopted by the
Board of Directors shall be subject to amendment or repeal by the shareholders
as well as by the Directors.
ARTICLE VIII
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be circular in
form and shall have inscribed thereon the name of the Association and the words
"Corporate Seal."
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. DEFINITIONS OF TERMS FOR THIS ARTICLE.
(a) "Director or Officer" shall include any person who may have served at the
request of the Association as a director or officer of another corporation in
which the Association owned stock or was a creditor at any time during the
period of said service, and all past, present and future directors and officers
of the Association whether or not so serving at the time of incurring the
expenses or liabilities referred to herein, and their personal representatives.
(b) "Expenses" shall include, without limiting the generality thereof, amounts
paid or payable as fees of legal counsel and experts.
(c) "Action" means any civil, criminal or administrative action, suit,
proceeding or claim, or threat thereof, in which a director or officer may be
involved as a party or otherwise, by reason of his having served as such
director or officer or by reason of anything done or omitted by him as such
director or officer, or alleged to have been so done or omitted.
<PAGE>
(d) "Determination by the Board of Directors" means a determination made by
resolution, upon favorable advice by counsel for the Association, adopted by the
affirmative vote of a majority of a committee consisting of all directors of the
Association then in office, other than those involved in the action, provided
that there are not less than three, such determination shall be deemed to have
been made if recommended by affirmative vote of a majority of the directors of
the Association then in office (whether or not involved in the action) but only
to the extent concurred in by either (i) the affirmative vote of a majority of
the outstanding shares entitled to vote at a meeting of the shareholders called
for that purpose, or (ii) the opinion of independent legal counsel selected by
the Board of Directors.
SECTION 2. MANDATORY INDEMNIFICATION. The Association shall indemnify each
director or officer against all expenses actually and reasonably incurred by him
in connection with any action and against all liability to which he is subjected
upon disposition of any action, if either (a) final disposition of such action
is made in favor of such director or officer or (b) he is adjudged to be not
guilty of gross negligence or misconduct in the performance of duty to the
Association in the matter.
SECTION 3. ASSUMPTION OF DEFENSE AND LIABILITY. If any director or officer, who
is involved in any action for which mandatory indemnification might be required
under Section 1 in the event of favorable adjudication thereof, shall make full
disclosure to the Board of Directors of or to counsel for the Association of the
pertinent facts not otherwise known to the Association, and if there shall be
made a determination by the Board of Directors that in its opinion such director
or officer was not guilty of negligence or misconduct in the performance of duty
to the Association in the matter, the Association shall assume or provide at the
Association's expense and risk the defense or settlement thereof on his behalf;
and in such event such director or officer shall have no liability to the
Association for any expense, liability or settlement payment incurred by the
Association in the matter.
SECTION 4. INSURANCE. The Association may upon affirmative vote of a majority of
its Board of Directors, purchase commercial insurance for the benefit of a
director or officer against all or any part of the expenses of actions against
such director or officer; and such insurance need not exclude actions in which
such director or officer may thereafter be adjudged guilty of negligence or
misconduct in the performance of duty to the Association. Such insurance may,
but need not, be for the benefit of all directors or officers.
SECTION 5. FURTHER ASSUMPTION OR SHARING OF EXPENSE AND LIABILITY. If complete
indemnification of expense, liability or settlement payments is not provided
pursuant to Sections 2, 3 and 4 to any director or officer, the Association may
grant such further indemnification in whole or in part as may be fixed by
determination by the Board of Directors upon consideration of the circumstances
of the individual action.
SECTION 6. LIABILITY FOR DETERMINATION. The Association and its directors,
officers, employees and agents shall not be liable to anyone for making any
determination as to the existence or absence of liability under any of Section 2
through 5 above, or for making or refusing to make any payment thereunder on the
basis of such determination, or for taking or omitting to take any other action
thereunder in reliance upon advice of counsel.
SECTION 7. OTHER RIGHTS. The foregoing indemnification provisions shall be in
addition, and may be claimed without prejudice, to any other rights which any
director, officer, employee or agent may have.
<PAGE>
ARTICLE X
EMERGENCY PROVISIONS
SECTION 1. APPLICABILITY. The provisions of this Article shall be of no effect
until the occurrence of a state of emergency resulting in this Association being
unable to continue its normal functions under the direction of established
management and at the location of its main office (in this Article referred to
as "Emergency"), which Emergency may include but shall not be limited to war or
war-like disaster. Upon such occurrence and during the continuation of such
Emergency:
(a) the provisions of this Article shall become effective forthwith and shall
remain so effective without further authorization or declaration, unless
otherwise determined by the Board of Directors or other body performing the
powers of the Board of Directors as provided in these By-laws or under any
governmental directives, and
(b) so far as the provisions of this Article are in conflict with the
provisions of any other By-law or resolution theretofore adopted, the provisions
of this Article shall prevail.
SECTION 2. TEMPORARY OFFICES. Upon the occurrence and during the continuation of
such an Emergency of sufficient severity so as to prevent this Association from
carrying on its normal banking functions at the location of its main office, any
or all of the business ordinarily conducted at such location shall be
temporarily relocated elsewhere in suitable quarters, which may be or include
but need not be limited to an established branch office of this Association, as
may be designated by the Board of Directors or other body performing the powers
of the Board of Directors as provided in these By-laws or under any governmental
directives. Such relocated place of business shall be within the City of
Milwaukee if a suitable location within such City is available. Any temporary
relocated place of business shall be returned to its original or other legally
authorized location as soon as practicable and such temporary place of business
shall then be discontinued.
SECTION 3. EMERGENCY EXECUTIVE COMMITTEE. Upon the occurrence and during the
continuance of such an Emergency of sufficient severity so as to prevent the
conduct and management of the affairs and business of this Association by its
Board of Directors and the regularly established committees thereof:
(a) There is hereby created an Emergency Executive Committee, which may
exercise the full powers and authority of the Board of Directors and of any
other regularly established Committee of the Board of Directors until the Board
of Directors or other such established committee may be available to resume
exercise of its functions.
<PAGE>
(b) Such Emergency Executive Committee shall consist of the then available
members of the Board of Directors, any three of whom shall constitute a quorum.
Whenever less than three regularly elected directors of this Association shall
be available to serve on such Emergency Executive Committee, the place of any
absent director may be taken by any person, designated by prior resolution of
the Board of Directors of First Wisconsin Bankshares Corporation (as holder of
more than 98% of the outstanding shares of this Association), to serve as an
acting director and member of the Emergency Executive Committee until not less
than three regularly elected directors of this Association are available to
serve.
(c) The Emergency Executive Committee may meet upon such notice and at such
times and places, as the person performing the powers and duties of President
may determine to be practicable under Emergency conditions. Approval by any
member of any matter or action, given by written, telegraphic or telephone
consent, shall have the same effect as a vote taken at a meeting.
AMENDED: 6/19/80
SECTION 4. EMERGENCY OFFICER SUCCESSION. If during any Emergency, neither the
Chairman of the Board, nor the President, nor the Executive Vice President of
this Association can be located by the then acting main office or is unable to
assume or to continue normal executive duties, then the authority and duties of
such officer shall without further action of the Board of Directors, be
automatically assumed temporarily by the Senior Vice Presidents of the Bank and
such monthly amounts of Pension Plan Benefits shall be calculated according to
the applicable method of payment as provided under the Pension Plan, including
any such method or payment option validly elected by the Eligible Employee or
his Beneficiary thereunder.
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
Firstar Bank Milwaukee, N.A., 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 BANK MILWAUKEE, N.A.
(Trustee)
By: /s/ Yvonne Siira
--------------------------------------
Yvonne Siira, Assistant Vice President
(Name and title)
By: /s/ Pamela Warner
--------------------------------------
PAMELA WARNER, ASSISTANT SECRETARY
(Name and title)
Dated: August 5, 1999
<PAGE>
EXHIBIT 7
Legal Title of Bank: Firstar Bank Milwaukee, N.A. Call Date: 12/31/98
ST-BK: 55-9180 FFIEC 031
Address: 777 East Wisconsin Avenue Page RC-1
City, State Zip: Milwaukee, Wisconsin 53202
FDIC Certificate No.: | 0 | 5 | 3 | 0 | 8 |
---------------------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
<TABLE>
<CAPTION>
SCHEDULE RC--BALANCE SHEET
| C400 |
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): .. | / / / / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin (1).................. 0081 940,843 1.a.
b. Interest-bearing balances (2)........................................... 0071 4,624 1.b.
2. Securities ............................................................... | / / / / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, Column A):............. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, Column D)............ 1773 911,883 2.b.
3. Federal funds sold and securities purchased under agreements to resell .... 1350 936,258 3.
4. Loans and lease financing receivables:...................................... | / / / / / / / / / / / / / / |
a. Loans and leases, net of unearned income ............................... | / / / / / / / / / / / / / / |
(from Schedule RC-C)......................... | RCFD 2122 | 5,832,760 | / / / / / / / / / / / / / / | 4.a.
b. LESS: Allowance for loan and lease losses... | RCFD 3123 | 84,275 | / / / / / / / / / / / / / / | 4.b.
c. LESS: Allocated transfer risk reserve....... | RCFD 3128 | 0 | / / / / / / / / / / / / / / | 4.c.
d. Loans and leases, net of unearned income, allowance, and reserve........ | / / / / / / / / / / / / / / |
(Item 4.a. minus 4.b. and 4.c.)......................................... 2125 5,748,485 4.d.
5. Trading assets (from Schedule RC-D)......................................... 3545 13,839 5.
6. Premises and fixed assets (including capitalized leases).................... 2145 145,301 6.
7. Other real estate owned (from Schedule RC-M)................................ 2150 88 7.
8. Investments in unconsolidated subsidiaries and associated companies......... | / / / / / / / / / / / / / / |
(from Schedule RC-M)........................................................ 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding................ 2155 9,891 9.
10. Intangible assets (from Schedule RC-M)...................................... 2143 110,634 10.
11. Other assets (from Schedule RC-F)........................................... 2160 147,531 11.
12. Total assets (sum of items 1 through 11).................................... 2170 8,969,377 12.
- -----------
(1) Includes cash items in process of collection and unposted debits
(2) Includes time certificates of deposit not held for trading
LIABILITIES
13. Deposits: ............................................................... | / / / / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from.............. | / / / / / / / / / / / / / / |
Schedule RC-E, part 1).................................................. RCON 2200 5,325,682 13.a.
(1) Noninterest-bearing (1)................. | RCON 6631 | 1,458,862 | / / / / / / / / / / / / / / | 13.a.(1)
(2) Interest-bearing........................ | RCON 6636 | 3,866,820 | / / / / / / / / / / / / / / | 13.a.(2)
b. In foreign offices, Edge and Agreement ................................. | / / / / / / / / / / / / / / |
subsidiaries, and IBFs (from Schedule RC-E, part II).................... RCFN 2200 404,324 13.b.
(1) Noninterest-bearing..................... | RCFN 6631 | 582 | / / / / / / / / / / / / / / | 13.b.(1)
(2) Interest-bearing........................ | RCFN 6636 | 403,742 | / / / / / / / / / / / / / / | 13.b.(2)
<PAGE>
| C400 |
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
LIABILITIES (continued)
14. Federal funds purchased and securities sold under agreements to repurchase.. RCON 2800 1,834,422 14.
15. a. Demand notes issued to the U.S. Treasury................................ RCON 2840 99,271 15.a.
b. Trading liabilities (From Schedule RC-D)................................ RCFD 3548 12,368 15.b.
16. Other borrowed money (including mortgage indebtedness and obligations under | / / / / / / / / / / / / / / |
capitalized leases)......................................................... | / / / / / / / / / / / / / / |
a. With a remaining maturity of one year or less........................... RCFD 2332 25,937 16.a.
b. With a remaining maturity of more than one year through three years..... RCFD A547 0 16.b.
c. With a remaining maturity of more than three years...................... RCFD A547 20,000 16.c.
17. Not applicable. | / / / / / / / / / / / / / / |
18. Bank's liability on acceptances executed and outstanding.................... RCFD 2920 9,891 18.
19. Subordinated notes and debentures (2)....................................... RCFD 3200 413,191 19.
20. Other liabilities (from Schedule RC-G)...................................... RCFD 2930 190,228 20.
21. Total liabilities (sum of items 13 through 20).............................. RCFD 2948 8,335,314 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............................... RCFD 3838 0 23.
24. Common stock................................................................ RCFD 3230 76,600 24.
25. Surplus (exclude all surplus related to preferred stock).................... RCFD 3839 139,073 25.
26. a. Undivided profits and capital reserves.................................. RCFD 3632 400,214 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.............................................................. RCFD 8434 18,176 26.b.
27. Cumulative foreign currency translation adjustments......................... RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27)........................... RCFD 3210 634,063 28.
29. Total liabilitiesand equity capital (sum of items 21 and 28)................ RCFD 3300 8,969,377 29.
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best Number
describes the most comprehensive level of auditing work performed for the ------
bank by independent external auditors as of any date during 1997............ RCFD 6724 N/A M.1.
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in 5 = Review of the bank's financial statements
accordance with generally accepted auditing by external auditors.
standards by a certified public accounting
firm which submits a report on the bank.
2 = Independent audit of the bank's parent 6 = Compilation of the bank's financial
holding company conducted in accordance statements by external auditors.
with generally accepted auditing standards
by a certified public accounting firm which
submits a report on the consolidated
holding company (but not on the bank
separately).
3 = Directors' examination of the bank 7 = Other audit procedures (excluding tax
conducted in accordance with generally preparation work).
accepted auditing standards by a certified
public accounting firm (may be required by
state chartering authority).
4 = Directors' examination of the bank 8 = No external audit work.
performed by other external auditors (may
be required by state chartering authority).
</TABLE>
- -----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
