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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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MINNESOTA POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
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MINNESOTA 41-0418150
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
30 WEST SUPERIOR STREET
DULUTH, MINNESOTA 55802
(218) 722-2641
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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DAVID G. GARTZKE PHILIP R. HALVERSON, Esq.
Senior Vice President-Finance Vice President, General Counsel
and Chief Financial Officer and Corporate Secretary
30 West Superior Street 30 West Superior Street
Duluth, Minnesota 55802 Duluth, Minnesota 55802
(218) 722-2641 (218) 722-2641
JAMES K. VIZANKO ROBERT J. REGER, JR., Esq.
Corporate Treasurer Reid & Priest LLP
30 West Superior Street 40 West 57th Street
Duluth, Minnesota 55802 New York, New York 10019
(218) 722-2641 (212) 603-2000
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
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It is respectfully requested that the Commission
send copies of all notices, orders and communications to:
MICHAEL CONNOLLY, Esq.
Lane & Mittendorf LLP
320 Park Avenue
New York, New York 10022
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the registration statement becomes effective.
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 of 1933, please check the
following box and list the Securities Act of 1933 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 of 1933, check the following box and list the
Securities Act of 1933 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 PROPOSED
MAXIMUM MAXIMUM AMOUNT
TITLE OF EACH CLASS OF AMOUNT TO OFFERING AGGREGATE OF
SECURITIES BE PRICE OFFERING REGISTRA-
TO BE REGISTERED REGISTERED PER UNIT* PRICE* TION FEE
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First Mortgage Bonds . . . $75,000,000 100% $75,000,000 $22,728
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*Estimated solely for the purpose of calculating the registration fee.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
FILED AS PART OF THIS REGISTRATION STATEMENT WILL BE USED AS A COMBINED
PROSPECTUS IN CONNECTION WITH THIS REGISTRATION STATEMENT AND REGISTRATION
STATEMENT NO. 33-55240.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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SUBJECT TO COMPLETION
DATED January 30, 1997
PROSPECTUS
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$80,000,000
MINNESOTA POWER & LIGHT COMPANY
FIRST MORTGAGE BONDS
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Minnesota Power & Light Company ("Company") intends to offer from time
to time not to exceed $80,000,000 aggregate principal amount of its First
Mortgage Bonds ("New Bonds"). The New Bonds will be offered on terms to be
determined at the time of sale. This Prospectus will be supplemented by a
prospectus supplement ("Prospectus Supplement") which will set forth, as
applicable, the specific designation, aggregate principal amount, the
purchase price, maturity date, interest rate or rates, time of payment of
interest, and the redemption terms and other specific terms of the series
of the New Bonds in respect of which this Prospectus and the Prospectus
Supplement are delivered ("Offered Bonds").
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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The New Bonds may be sold directly by the Company or through agents
designated from time to time or through dealers or underwriters. If any
agent of the Company or any underwriters are involved in the sales of the
New Bonds, the names of such agents or such underwriters and any applicable
commissions or discounts and the net proceeds to the Company will be set
forth in the Prospectus Supplement.
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The date of this Prospectus is , 1997.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any sale of these
securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NEW
BONDS OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT
ANY TIME.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended ("1934 Act") and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission ("Commission"). Such reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the
following Regional Offices of the Commission: New York Regional Office, 7
World Trade Center, 13th Floor, New York, New York 10048; and Chicago
Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material may also be obtained at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. The Commission maintains a Web
site (http://www.sec.gov) that contains reports, proxy statements and other
information regarding registrants that file electronically with the
Commission, including the Company. The Company's Common Stock and the
preferred share purchase rights attached thereto are listed on the New York
Stock Exchange. Reports and other information concerning the Company may be
inspected and copied at the office of such Exchange at 20 Broad Street, New
York, New York. In addition, the Company's 5% Preferred Stock, $100 par
value, is listed on the American Stock Exchange. Reports and other
information concerning the Company may be inspected and copied at the
office of such Exchange at 86 Trinity Place, New York, New York.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed by the Company with the Commission
pursuant to the 1934 Act, are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1995 ("1995 Form 10-K").
2. The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996 and
September 30, 1996 (each as amended by a Form 10-Q/A
dated January 22, 1997).
3. The Company's Current Reports on Form 8-K dated April
9, 1996, June 18, 1996, August 2, 1996, August 23,
1996, September 5, 1996, October 3, 1996 and November
7, 1996.
Each document filed subsequent to the date of this Prospectus pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference in this Prospectus and shall be a part hereof
from the date of filing of such document; provided, however, that the
documents enumerated above or subsequently filed by the Company pursuant to
Section 13 or 15(d) of the 1934 Act prior to the filing with the Commission
of the Company's most recent Annual Report on Form 10-K shall not be
incorporated by reference in this Prospectus or be a part hereof from and
after the filing of such most recent Annual Report on Form 10-K. The
documents which are incorporated by reference in this Prospectus are
sometimes hereinafter referred to as the "Incorporated Documents."
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which is
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deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any document referred
to above which has been or may be incorporated in this Prospectus by
reference, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Requests for
such copies should be directed to: Shareholder Services, Minnesota Power,
30 West Superior Street, Duluth, Minnesota 55802, telephone number (218)
723-3974 or (800) 535-3056.
THE COMPANY
The Company is an operating public utility incorporated under the laws
of the State of Minnesota since 1906. Its principal executive office is at
30 West Superior Street, Duluth, Minnesota 55802, and its telephone number
is (218) 722-2641. The Company has operations in four business segments:
(1) electric operations, which include electric and gas services, and coal
mining; (2) water operations, which include water and wastewater services;
(3) automobile auctions, which also include a finance company and an auto
transport company; and (4) investments, which include real estate
operations, a 21 percent equity investment in a financial guaranty
reinsurance company, and a securities portfolio. As of September 30, 1996
the Company and its subsidiaries had approximately 5,900 employees.
(UNAUDITED)
NINE MONTHS
YEAR ENDED DECEMBER ENDED
31, SEPTEMBER 30,
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SUMMARY OF EARNINGS PER
SHARE (1) 1993 1994 1995 1995 1996
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CONSOLIDATED EARNINGS PER SHARE
Continuing Operations $ 2.27 $ 1.99 $ 2.06 $ 1.69 $ 1.68
Discontinued (.07) .07 .10 .10 -
Operations (2) ------ ------ ------ ------ ------
Total $ 2.20 $ 2.06 $ 2.16 $ 1.79 $ 1.68
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PERCENTAGE OF EARNINGS BY BUSINESS SEGMENT
Continuing Operations
Electric Operations 67% 66% 63% 57% 59%
Water Operations 3 23 (2) 2 7
Automobile Auctions - - 0 2 7
Investments 55 40 67 66 54
Corporate Charges (22) (33) (33) (33) (27)
and Other (3)
Discontinued (3) 4 5 6 -
Operations (2) --- --- --- --- ---
100% 100% 100% 100% 100%
=== === === === ===
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(1) Financial statement information may not be comparable between
periods due to the purchase of 80 percent of ADESA Corporation on
July 1, 1995, another 3 percent on January 31, 1996 and the
remaining 17 percent on August 21, 1996.
(2) On June 30, 1995 the Company sold its interest in its paper and
pulp business to Consolidated Papers, Inc. ("CPI") for $118
million in cash, plus CPI's assumption of certain debt and lease
obligations. The Company is still committed to a maximum
guarantee of $95 million to ensure a portion of a $33.4 million
annual lease obligation for paper mill equipment under an
operating lease extending to 2012. CPI has agreed to indemnify
the Company for any payments the Company may make as a result of
the Company's obligation relating to this operating lease.
(3) Includes the financial results for the Reach All Partnership and
general corporate expenses not allocable to a specific business
segment.
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ELECTRIC OPERATIONS
Electric operations generate, transmit, distribute and sell
electricity. The Company provides electricity to 124,000 customers in
northern Minnesota, while the Company's wholly owned subsidiary, Superior
Water, Light and Power Company, sells electricity to 14,000 customers and
natural gas to 11,000 customers, and provides water to 10,000 customers in
northwestern Wisconsin. Another wholly owned subsidiary, BNI Coal, Ltd.
("BNI Coal") owns and operates a lignite mine in North Dakota. Two
electric generating cooperatives, Minnkota Power Cooperative, Inc. and
Square Butte Electric Cooperative ("Square Butte"), presently consume
virtually all of BNI Coal's production of lignite coal under coal supply
agreements extending to 2027. Under an agreement with Square Butte, the
Company purchases 71 percent of the output from the Square Butte unit,
which is capable of generating up to 470 megawatts.
In 1995 large industrial customers contributed about half of the
Company's electric operating revenue. The Company has large power
contracts to sell power to ten industrial customers (five taconite
producers, four paper companies and a pipeline company) each requiring 10
megawatts or more of power. These contracts, which have termination dates
ranging from October 1997 to December 2007, require the payment of minimum
monthly demand charges that cover most of the fixed costs, including a
return on common equity, associated with having the capacity available to
serve these customers.
WATER OPERATIONS
Water operations include Florida Water Services Corporation ("Florida
Water", formerly Southern States Utilities, Inc.), Heater Utilities, Inc.
("Heater") and Instrumentation Services, Inc. ("ISI"), three wholly owned
subsidiaries of the Company. Florida Water is the largest private water
supplier in Florida. At September 30, 1996 Florida Water provided water to
119,000 customers and wastewater treatment services to 54,000 customers in
Florida. At September 30, 1996 Heater provided water to 25,000 customers
and wastewater treatment services to 1,000 customers in North Carolina and
South Carolina. ISI provides maintenance services to water utility
companies in North Carolina, South Carolina, Florida, Georgia, Tennessee,
Virginia and Texas.
AUTOMOBILE AUCTIONS
ADESA Corporation ("ADESA") is a wholly owned subsidiary of the
Company and is the third largest automobile auction business in the United
States. Headquartered in Indianapolis, Indiana, ADESA owns and operates 25
automobile auctions in the United States and Canada through which used cars
and other vehicles are sold to franchised automobile dealers and licensed
used car dealers. Two wholly owned subsidiaries of ADESA, Automotive
Finance Corporation and ADESA Auto Transport, perform related services.
Sellers at ADESA's auctions include domestic and foreign auto
manufacturers, car dealers, fleet/lease companies, banks and finance
companies.
The Company acquired 80 percent of ADESA on July 1, 1995. On January
31, 1996 the Company provided additional capital in exchange for an
additional 3 percent of ADESA. On August 21, 1996 the Company acquired the
remaining 17 percent ownership interest of ADESA from the ADESA management
shareholders. In conjunction with the transaction, four of the management
shareholders left ADESA to pursue other opportunities.
INVESTMENTS
The Company owns 80 percent of Lehigh Acquisition Corporation, a real
estate company that owns various real estate properties and operations in
Florida.
The Company has a 21 percent equity investment in Capital Re
Corporation ("Capital Re"). Capital Re is a Delaware holding company
engaged primarily in financial and mortgage guaranty reinsurance through
its wholly owned subsidiaries, Capital Reinsurance Company and Capital
Mortgage Reinsurance Company. Capital Reinsurance Company is a reinsurer
of financial guarantees of municipal and non-municipal debt obligations.
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Capital Mortgage Reinsurance Company is a reinsurer of residential mortgage
guaranty insurance. The Company's equity investment in Capital Re at
September 30, 1996 was $99 million.
As of September 30, 1996 the Company had approximately $160 million
invested in a securities portfolio. The majority of the portfolio consists
of stocks of other utility companies with investment grade debt securities
outstanding and are considered by the Company to be conservative
investments. Additionally, the Company sells common stock securities short
and enters into short sales of treasury futures contracts as part of an
overall investment portfolio hedge strategy.
APPLICATION OF PROCEEDS
The Company is offering a maximum of $80,000,000 aggregate principal
amount of its New Bonds. The net proceeds to be received from the issuance
and sale of the New Bonds will be used for general corporate purposes,
which may include the redemption or other acquisition, in whole or in part,
of certain of the Company's outstanding securities.
Reference is made to the Incorporated Documents with respect to the
Company's general capital requirements and general financing plans and
capabilities.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company has calculated ratios of earnings to fixed charges as
follows:
Nine Months
Year Ended December 31, Ended
---------------------------- September 30,
1991 1992 1993 1994 1995 1996
---- ---- ---- ---- ---- -------------
Ratio of Earnings to
Fixed Charges . . . 2.55 2.60 2.52 2.17 1.90 2.18
SUPPLEMENTAL RATIOS OF EARNINGS TO FIXED CHARGES
The Company has calculated supplemental ratios of earnings to
fixed charges as follows:
Nine Months
Year Ended December 31, Ended
----------------------------- September 30,
1991 1992 1993 1994 1995 1996
---- ---- ---- ---- ---- ------------
Supplemental Ratio of
Earnings to Fixed
Charges . . . . . . 2.20 2.25 2.19 1.95 1.73 1.99
The supplemental ratio of earnings to fixed charges includes the
Company's obligations under a contract with Square Butte extending
through 2007 pursuant to which the Company is purchasing 71 percent of
the output of a generating unit capable of generating up to 470
megawatts. The Company is obligated to pay Square Butte all of Square
Butte's leasing, operating and debt service costs (less any amounts
collected from the sale of power or energy to others) that shall not
have been paid by Square Butte when due. See Note 12 of the Company's
Consolidated Financial Statements incorporated by reference in the
Company's 1995 Form 10-K.
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DESCRIPTION OF NEW BONDS
General. The New Bonds are to be issued under the Company's
Mortgage and Deed of Trust, dated as of September 1, 1945, with Irving
Trust Company (now The Bank of New York) and Richard H. West (W.T.
Cunningham, successor), as Trustees, as supplemented by eighteen
supplemental indentures (herein collectively referred to as the
"Mortgage"), all of which are exhibits to the Registration Statement.
The statements herein with respect to the New Bonds and the Mortgage
are merely an outline and do not purport to be complete. They make
use of terms defined in the Mortgage and are qualified in their
entirety by express reference to the cited Articles and Sections of
the Mortgage.
Reference is made to the Prospectus Supplement for the following
terms of the Offered Bonds (among others): (i) the designation, series
and aggregate principal amount of the Offered Bonds; (ii) the
percentage or percentages of their principal amount at which such
Offered Bonds will be issued; (iii) the date or dates on which the
Offered Bonds will mature; (iv) the rate or rates per annum at which
the Offered Bonds will bear interest; (v) the times at which such
interest will be payable; and (vi) redemption terms or other specific
terms.
Form and Exchanges. The New Bonds will be issued in definitive
fully registered form without coupons in denominations of $1,000 and
multiples thereof and will be transferable and exchangeable without
charge (except for stamp taxes, if any, or other governmental charges)
at The Bank of New York, New York, New York.
Interest, Maturity and Payment. Reference is made to the
Prospectus Supplement for the interest rate or rates of the Offered
Bonds and the dates on which such interest is payable. Principal and
interest are payable at The Bank of New York, New York, New York.
Redemption and Purchase of Bonds. The New Bonds will be
redeemable, in whole or in part, on 30 days notice at the redemption
prices set forth in the Prospectus Supplement for redemptions
including (i) for the basic improvement fund, (ii) for the maintenance
and replacement fund, (iii) with certain deposited cash, (iv) with
proceeds of released property, or (v) at the option of the Company.
Reference is made to the Prospectus Supplement for the redemption
terms of the Offered Bonds.
If at the time notice of redemption is given the redemption
moneys are not on deposit with the Corporate Trustee, the redemption
may be made subject to their receipt before the date fixed for
redemption.
Cash deposited under any provisions of the Mortgage (with certain
exceptions) may be applied to the purchase of Bonds of any series.
(Mortgage, Art. X.)
Sinking or Improvement Fund. Reference is made to the Prospectus
Supplement concerning whether or not the Offered Bonds are entitled to
the benefit of a sinking or improvement fund or other provision for
amortization prior to maturity. Of the currently outstanding Bonds,
only the 6-1/2% Series due January 1, 1998 has sinking fund or
improvement fund provisions.
Replacement Fund. Although the New Bonds as such are not entitled
to the benefit of a replacement fund, so long as any Bonds of the 6-
1/2% Series due January 1, 1998 are outstanding, there shall be
expended for each year for replacements and improvements in respect of
the mortgaged electric, gas, steam and/or hot water utility property
and of certain automotive equipment an amount equal to $750,000 plus 2
percent of net additions to such depreciable mortgaged property made
after June 30, 1945 and prior to the beginning of such year. Such
requirement may be met with cash or gross property additions or by
certifying net cash expenditures for certain automotive equipment or
by taking credit for Bonds and qualified lien bonds retired. Any
excess in such credits may be applied against future requirements.
Such cash may be withdrawn on gross property additions or on waiver of
the right to issue Bonds or be applied to the purchase or redemption
of Bonds of such series as may be designated by the Company, including
the New Bonds. (Mortgage, Sec. 39; Fourth Supplemental, Sec. 3.)
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Special Provisions for Retirement of Bonds. If, during any 12
month period, mortgaged property is disposed of by order of or to any
governmental authority resulting in the receipt of $5 million or more
as proceeds, the Company (subject to certain conditions) must apply
such proceeds, less certain deductions, to the retirement of Bonds.
(Mortgage, Sec. 64.) Reference is made to the Prospectus Supplement
for information concerning whether the New Bonds are redeemable for
this purpose and, if so, at what redemption prices.
Security. The New Bonds and any other Bonds now or hereafter
issued under the Mortgage will be secured by the Mortgage, which
constitutes, in the opinion of General Counsel for the Company, a
first lien on all of the electric generating plants and other
materially important physical properties of the Company and
substantially all other properties described in the Mortgage as owned
by the Company, subject to (a) leases of minor portions of the
Company's property to others for uses which, in the opinion of such
counsel, do not interfere with the Company's business, (b) leases of
certain property of the Company not used in its electric utility
business, and (c) excepted encumbrances, minor defects and
irregularities, but such counsel has not examined title to or passed
upon title to reservoir lands, easements or rights of way, any
property not costing in excess of $25,000, or lands or rights held for
flowage, flooding or seepage purposes, or riparian rights. There are
excepted from the lien: cash and securities; merchandise, equipment,
materials or supplies held for sale or other disposition; aircraft,
automobiles and other vehicles, and materials and supplies for
repairing and replacing the same; timber, minerals, mineral rights and
royalties; receivables, contracts, leases and operating agreements.
The Mortgage contains provisions for subjecting after-acquired
property (subject to pre-existing liens) to the lien thereof, subject
to limitations in the case of consolidation, merger or sale of
substantially all of the Company's assets.
The Mortgage provides that the Trustees shall have a lien upon
the mortgaged property, prior to the Bonds, for the payment of their
reasonable compensation, expenses and disbursements and for indemnity
against certain liabilities. (Mortgage, Sec. 96.)
No stocks or properties of subsidiaries are subject to the
Mortgage.
Issuance of Additional Bonds. The maximum principal amount of
Bonds which may be issued under the Mortgage is not limited. Bonds of
any series may be issued from time to time on the basis of: (1) 60
percent of property additions after adjustments to offset retirements;
(2) retirement of Bonds or qualified lien bonds; and (3) deposit of
cash. With certain exceptions in the case of (2) above, the issuance
of Bonds requires adjusted net earnings before income taxes for 12 out
of the preceding 15 months of at least twice the annual interest
requirements on all Bonds at the time outstanding, including the
additional issue, and on all indebtedness of prior rank. Such
adjusted net earnings are computed after provision for retirement and
depreciation of property equal to the replacement fund requirements
for such period. It is expected that the New Bonds will be issued
upon the basis of the retirement of Bonds or property additions.
Property additions generally include electric, gas, steam or hot
water property acquired after June 30, 1945, but may not include
securities, aircraft, automobiles or other vehicles, or property used
principally for the production or gathering of natural gas. There was
available, as of December 31, 1996, unfunded net property additions of
approximately $111,272,239.
In general, when the Bonds of the 6-1/2% Series due January 1,
1998 have been retired, property additions theretofore funded to
satisfy sinking or improvement funds and/or replacement funds for all
series will revert to unfunded status, and such property additions, as
well as any Bonds theretofore used to satisfy all series' sinking or
improvement funds and/or replacement funds, will become available as a
basis for the issuance of additional Bonds.
The Company has reserved the right to amend the Mortgage without
any consent or other action by holders of any series of Bonds
(including the New Bonds) other than the Bonds of the 6-1/2% Series
due January 1, 1998 so as to include nuclear fuel (and similar or
analogous devices or substances) as property additions.
- 7 -
The Mortgage contains certain restrictions upon the issuance of
Bonds against property subject to liens and upon the increase of the
amount of such liens. (Mortgage, Sec. 4-8, 20-30, and 46; Fifth
Supplemental, Sec. 2.)
Release and Substitution of Property. Property may be released
upon the basis of: (1) deposit of cash or, to a limited extent,
purchase money mortgages; (2) property additions, after adjustments in
certain cases to offset retirement and after making adjustments for
qualified lien bonds outstanding against property additions; and/or
(3) waiver of the right to issue Bonds without applying any earnings
test. Cash may be withdrawn upon the bases stated in (2) and (3)
above. When property released is not funded property, property
additions used to effect the release may again, in certain cases,
become available as credits under the Mortgage, and the waiver of the
right to issue Bonds to effect the release may, in certain cases,
cease to be effective as such a waiver. Similar provisions are in
effect as to cash proceeds of such property. The Mortgage contains
special provisions with respect to qualified lien bonds pledged, and
disposition of moneys received on pledged prior lien bonds. (Mortgage,
Sec. 5, 31, 32, 37, 46-50, 59-63, 100 and 118.)
Dividend Covenant. The Company covenants that it will not declare
or pay dividends (other than dividends payable in common stock) on or
make any other distributions on or acquire (unless without cost to it)
any of its common stock unless the provisions for depreciation and
retirement of property during the period beginning September 1, 1945
to the date of the proposed payment, distribution or acquisition, plus
earned surplus of the Company (including current net income available
to be transferred to earned surplus) remaining:
(a) after such payment, distribution or acquisition; and
(b) after deducting any remainder of the amount of earned
surplus of the Company as of August 31, 1945, after deducting
from such amount the charges to earned surplus subsequent to
August 31, 1945, other than charges occasioned by dividends
(other than dividends payable in common stock) on its common
stock or occasioned by other distributions on or acquisitions of
its common stock and other than charges to earned surplus with
corresponding credits to reserve for depreciation and retirement
of property;
shall be at least equal to the amount of replacement fund
requirements, if any, for such period. (See Replacement Fund.)
(Mortgage, Sec. 39.) None of the Company's retained earnings as of
September 30, 1996 was restricted as a result of such provisions.
Modification of the Mortgage. The rights of Bondholders may be
modified with the consent of the holders of 70 percent of the Bonds
and, if less than all series of Bonds are affected, the consent also
of the holders of 70 percent of the Bonds of each series affected.
The Company has reserved the right without any consent or other action
by the holders of any series of Bonds (including the New Bonds) other
than the Bonds of the 6-1/2% Series due January 1, 1998 to amend the
Mortgage so as to substitute 66 2/3 percent for 70 percent in the
foregoing provisions. In general, no modification of the terms of
payment of principal and interest, no modification of the obligations
of the Company under Section 64 and no modification affecting the lien
or reducing the percentage required for modification, is effective
against any Bondholder without his consent. (Mortgage, Art. XIX; Fifth
Supplemental, Sec. 3.)
Defaults and Notice Thereof. Defaults are defined as being
default in payment of principal; default for 60 days in payment of
interest or of installments of funds for retirement of Bonds; certain
defaults with respect to qualified lien bonds and certain events in
bankruptcy, insolvency or reorganization; and default of 90 days after
notice in other covenants. (Mortgage, Sec. 65.) The Trustees may
withhold notice of default (except in payment of principal, interest
or funds for retirement of Bonds) if they think it is in the interest
of the bondholders. (Mortgage, Sec. 66.) Under the Trust Indenture
Act of 1939, as amended, general periodic evidence is required to be
furnished as to compliance with the conditions and covenants under the
Mortgage.
The Corporate Trustee or the holders of 25 percent of the Bonds
may declare the principal and interest due on default, but a majority
may annul such declaration if the default has been cured. (Mortgage,
- 8 -
Sec. 67.) No holder of Bonds may enforce the lien of the Mortgage
without giving the Trustees written notice of a default and unless
holders of 25 percent of the Bonds have requested the Trustees to act
and offered them reasonable opportunity to act and indemnity
satisfactory to the Trustees and they shall have failed to act.
(Mortgage, Sec. 80.) The holders of a majority of the Bonds may
direct the time, method and place of conducting any proceedings for
any remedy available to the Trustees, or exercising any trust or power
conferred upon the Trustees, but the Trustees are not required to
follow such direction if not sufficiently indemnified for
expenditures. (Mortgage, Sec. 71.)
EXPERTS
The Company's consolidated financial statements incorporated in
this Prospectus by reference to the Company's 1995 Form 10-K, except
as they relate to ADESA, have been audited by Price Waterhouse LLP,
independent accountants, and, insofar as they relate to ADESA, by
Ernst & Young LLP, independent auditors. Such financial statements,
except as they relate to ADESA, have been so incorporated in reliance
on the report of Price Waterhouse LLP, given on the authority of said
firm as experts in auditing and accounting.
The financial statement schedule incorporated in this Prospectus
by reference to the Company's 1995 Form 10-K has been so incorporated
in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in
auditing and accounting.
The consolidated financial statements of ADESA for the period
from July 1, 1995 to December 31, 1995 which are included in the
consolidated financial statements of the Company incorporated in this
Prospectus by reference to the Company's 1995 Form 10-K have been
audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included in said 1995 Form 10-K. The
consolidated financial statements of ADESA for the period from July 1,
1995 to December 31, 1995 are included in the consolidated financial
statements of the Company in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
Legal conclusions and opinions specifically attributed to General
Counsel herein under Description of New Bonds and in the Incorporated
Documents have been reviewed by Philip R. Halverson, Esq., Duluth,
Minnesota, Vice President, General Counsel and Corporate Secretary of
the Company, and are set forth or incorporated by reference herein in
reliance upon his opinion given upon his authority as an expert.
As of December 31, 1996 Mr. Halverson owned approximately 4,432
shares of the Common Stock of the Company. Mr. Halverson is regularly
acquiring additional shares of Common Stock as a participant in the
Company's Employee Stock Purchase Plan, Employee Stock Ownership Plan
and Supplemental Retirement Plan.
LEGAL OPINIONS
The legality of the New Bonds will be passed upon for the Company
by Mr. Halverson and by Reid & Priest LLP, New York, New York, counsel
for the Company, and for any underwriter, dealer or agent by Lane &
Mittendorf LLP, New York, New York. Reid & Priest LLP and Lane &
Mittendorf LLP may rely as to all matters of Minnesota law upon the
opinion of Mr. Halverson.
PLAN OF DISTRIBUTION
The Company may sell the New Bonds in any of three ways: (i)
through underwriters or dealers; (ii) directly to a limited number of
institutional purchasers or to a single purchaser; or (iii) through
agents. The Prospectus Supplement relating to the Offered Bonds will
set forth the terms of the offering of the Offered Bonds, including
the name or names of any underwriters, dealers or agents, the purchase
price of the Offered Bonds and the net proceeds to the Company from
such sale, any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
- 9 -
If underwriters are used in any sale of the New Bonds, the
Offered Bonds will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale.
The underwriter or underwriters with respect to a particular
underwritten offering of Offered Bonds will be named in the Prospectus
Supplement relating to such offering and, if an underwriting syndicate
is used, the managing underwriter or underwriters will be set forth on
the cover page of such Prospectus Supplement. Unless otherwise set
forth in the Prospectus Supplement, the obligations of the underwriter
or underwriters to purchase the Offered Bonds will be subject to
certain conditions precedent and the underwriter or underwriters will
be obligated to purchase all the Offered Bonds if any are purchased
except that, in certain cases involving a default by one or more
underwriters, less than all of the Offered Bonds may be purchased.
Offered Bonds may be sold directly by the Company or through
agents designated by the Company from time to time. Any agent
involved in the offer or sale of the Offered Bonds in respect of which
this Prospectus is delivered will be named, and any commissions
payable by the Company to such agent will be set forth, in the
Prospectus Supplement. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for
the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Offered Bonds from the Company at
the public offering price to be set forth in the Prospectus Supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be
subject to those conditions set forth in the Prospectus Supplement,
and the Prospectus Supplement will set forth the commission payable
for solicitation of such contracts.
Subject to certain conditions, agents and underwriters may be
entitled under agreements entered into with the Company to
indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act of 1933, as amended,
arising out of or based upon, among other things, any untrue statement
or alleged untrue statement of a material fact contained in the
registration statement, this Prospectus, a Prospectus Supplement or
the Incorporated Documents or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. See the
Prospectus Supplement.
- 10 -
======================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AND, IF
GIVEN OR MADE, SUCH OTHER INFORMATION AND REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY
UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPEC-
TUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT
THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT
DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH THEY
RELATE. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL.
-------------------------
TABLE OF CONTENTS
PAGE
----
Available Information . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents
by Reference . . . . . . . . . . . . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Application of Proceeds . . . . . . . . . . . . . . . . . . . . 5
Ratios of Earnings to Fixed Charges . . . . . . . . . . . . . . 5
Supplemental Ratios of Earnings to
Fixed Charges . . . . . . . . . . . . . . . . . . . . . . . . 5
Description of New Bonds . . . . . . . . . . . . . . . . . . . 6
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . 9
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . 9
======================================================================
======================================================================
$80,000,000
MINNESOTA
POWER & LIGHT
COMPANY
FIRST MORTGAGE BONDS
--------------
PROSPECTUS
--------------
, 1997
----------
======================================================================
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of
the securities being registered other than underwriting compensation
are:
Filing fee - Securities and Exchange Commission . . . . . $ 22,728
Minnesota Mortgage Registration Tax . . . . . . . . . . . 175,000
Fees of Trustees, including authentication
and counsel charges . . . . . . . . . . . . . . . . . . 30,000
Fees of Company's legal counsel . . . . . . . . . . . . . 80,000
Auditors' fees . . . . . . . . . . . . . . . . . . . . . 17,500
Printing, including Form S-3, prospectus,
exhibits, etc. . . . . . . . . . . . . . . . . . . . . 15,000
Printing securities . . . . . . . . . . . . . . . . . . . 5,000
Rating agencies' fees . . . . . . . . . . . . . . . . . . 40,000
Miscellaneous expenses . . . . . . . . . . . . . . . . . 24,772
--------
*Total . . . . . . . . . . . . . . . . . . . . . . . . $410,000
========
---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Business Corporation Act
generally provides for the indemnification of directors, officers or
employees of a corporation made or threatened to be made a party to a
proceeding by reason of the former or present official capacity of the
person against judgments, penalties and fines (including attorneys'
fees and disbursements) where such person, among other things, has not
been indemnified by another organization, acted in good faith,
received no improper personal benefit and with respect to any criminal
proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 13 of the Bylaws of the Company contains the following
provisions relative to indemnification of directors and officers:
"The Company shall reimburse or indemnify each present and future
director and officer of the Company (and his or her heirs, executors
and administrators) for or against all expenses reasonably incurred by
such director or officer in connection with or arising out of any
action, suit or proceeding in which such director or officer may be
involved by reason of being or having been a director or officer of
the Company. Such indemnification for reasonable expenses is to be to
the fullest extent permitted by the Minnesota Business Corporation
Act, Minnesota Statutes Chapter 302A. By affirmative vote of the Board
of Directors or with written approval of the Chairman and Chief
Executive Officer, such indemnification may be extended to include
agents and employees who are not directors or officers of the Company,
but who would otherwise be indemnified for acts and omissions under
Chapter 302A of the Minnesota Business Corporation Act, if such agent
or employee were an officer of the Company."
"Reasonable expenses may include reimbursement of attorney's fees
and disbursements, including those incurred by a person in connection
with an appearance as a witness."
II-1
"Upon written request to the Company and approval by the Chairman
and Chief Executive Officer, an agent or employee for whom
indemnification has been extended, or an officer or director may
receive an advance for reasonable expenses if such agent, employee,
officer or director is made or threatened to be made a party to a
proceeding involving a matter for which indemnification is believed to
be available under Minnesota Statutes Chapter 302A."
"The foregoing rights shall not be exclusive of other rights to
which any director or officer may otherwise be entitled and shall be
available whether or not the director or officer continues to be a
director or officer at the time of incurring such expenses and
liabilities."
The Company has insurance covering its expenditures which might
arise in connection with the lawful indemnification of its directors
and officers for their liabilities and expenses, and insuring officers
and directors of the Company against certain other liabilities and
expenses.
ITEM 16. EXHIBITS.
1 - Form of Underwriting Agreement.
+4(a)1 - Articles of Incorporation, restated as of July 27,
1988 (filed as Exhibit 3(a), File No. 33-24936).
+4(a)2 - Certificate Fixing Terms of Serial Preferred Stock
A, $7.125 Series (filed as Exhibit 3(a)2, File No.
33-50143).
+4(a)3 - Certificate Fixing Terms of Serial Preferred Stock
A, $6.70 Series (filed as Exhibit 3(a)3, File No.
33-50143).
+4(b) - Bylaws as amended January 23, 1991 (filed as
Exhibit 3(b), File No. 33-45549).
+4(c)1 - Mortgage and Deed of Trust, dated as of September
1, 1945, between the Company and Irving Trust
Company (now The Bank of New York) and Richard H.
West (W. T. Cunningham, successor), as Trustees
(filed as Exhibit 7(c), File No. 2-5865).
+4(c)2 - Supplemental Indentures to Mortgage and Deed of
Trust:
Reference
---------
Number Dated as of File Exhibit
------ ---------- ---- -------
First March 1, 1949 2-7826 7(b)
Second July 1, 1951 2-9036 7(c)
Third March 1, 1957 2-13075 2(c)
Fourth January 1, 1968 2-27794 2(c)
Fifth April 1, 1971 2-39537 2(c)
Sixth August 1, 1975 2-54116 2(c)
Seventh September 1, 1976 2-57014 2(c)
Eighth September 1, 1977 2-59690 2(c)
Ninth April 1, 1978 2-60866 2(c)
Tenth August 1, 1978 2-62852 2(d)2
II-2
Eleventh December 1, 1982 2-56649 4(a)3
Twelfth April 1, 1987 33-30224 4(a)3
Thirteenth March 1, 1992 33-47438 4(b)
Fourteenth June 1, 1992 33-55240 4(b)
Fifteenth July 1, 1992 33-55240 4(c)
Sixteenth July 1, 1992 33-55240 4(d)
Seventeenth February 1, 1993 33-50143 4(b)
Eighteenth July 1, 1993 33-50143 4(c)
4(d) - Form of Supplemental Indenture relating to the New
Bonds.
+4(e) - Mortgage and Deed of Trust, dated as of March 1,
1943, between Superior Water, Light and Power
Company and Chemical Bank & Trust Company and
Howard B. Smith, as Trustees (First Bank N.A.,
successor Trustee) (filed as Exhibit 7(c), File
No. 2-8668), as supplemented and modified by
First Supplemental Indenture thereto dated as of
March 1, 1951 (filed as Exhibit 2(d)(1), File No. 2-
59690), Second Supplemental Indenture thereto dated
as of March 1, 1962 (filed as Exhibit 2(d)1, File
No. 2-27794), Third Supplemental Indenture thereto
dated as of July 1, 1976 (filed as Exhibit 2(e)1,
File No. 2-57478), Fourth Supplemental Indenture
thereto dated as of March 1, 1985 (filed as Exhibit
4(b), File No. 2-78641), and Fifth Supplemental
Indenture thereto, dated as of December 1, 1992
(filed as Exhibit 4(b)1 to Form 10-K for the year
ended December 31, 1992, File No. 1-3548).
+4(f) - Amended and Restated Trust Agreement, dated as of
March 1, 1996, relating to MP&L Capital I's 8.05%
Cumulative Quarterly Income Preferred Securities,
between the Company, as Depositor, and The Bank of
New York, The Bank of New York (Delaware), Philip R.
Halverson, David G. Gartzke and James K. Vizanko, as
Trustees (filed as Exhibit 4(a) to Form 10-Q for the
quarter ended March 31, 1996, File No. 1-3548).
+4(g) - Amendment No. 1, dated April 11, 1996, to Amended
and Restated Trust Agreement, dated as of March 1,
1996, relating to MP&L Capital I's 8.05% Cumulative
Quarterly Income Preferred Securities (filed as
Exhibit 4(b) to Form 10-Q for the quarter ended
March 31, 1996, File No. 1-3548).
+4(h) - Indenture, dated as of March 1, 1996, relating to
the Company's 8.05% Junior Subordinated Debentures,
Series A, Due 2015, between the Company and The Bank
of New York, as Trustee (filed as Exhibit 4(c) to
Form 10-Q for the quarter ended March 31, 1996, File
No. 1-3548).
+4(i) - Guarantee Agreement, dated as of March 1, 1996,
relating to MP&L Capital I's 8.05% Cumulative
Quarterly Income Preferred Securities, between the
Company, as Guarantor, and The Bank of New York, as
Trustee (filed as Exhibit 4(d) to Form 10-Q for the
quarter ended March 31, 1996, File No. 1-3548).
+4(j) - Agreement as to Expenses and Liabilities dated as of
March 20, 1996, relating to MP&L Capital I's 8.05%
Cumulative Quarterly Income Preferred Securities,
between the Company and MP&L Capital I (filed as
Exhibit 4(e) to Form 10-Q for the quarter ended
March 31, 1996, File No. 1-3548).
II-3
+4(k) - Rights Agreement dated as of July 24, 1996 between
Minnesota Power & Light Company and the Corporate
Secretary of Minnesota Power & Light Company, as
Rights Agent, including Exhibit A - Form of
Certificate of Resolution Fixing Terms of Junior
Serial Preferred Stock A, Exhibit B - Form of Right
Certificate and Exhibit C - Summary of the Rights
Plan (filed as Exhibit 4 to Form 8-K dated August 2,
1996, File No. 1-3548).
5(a) - Opinion and Consent of Philip R. Halverson, Esq.,
Vice President, General Counsel and Corporate
Secretary of the Company.
5(b) - Opinion and Consent of Reid & Priest LLP.
12 - Computation of Ratios of Earnings to Fixed Charges
and Supplemental Ratios of Earnings to Fixed
Charges.
23(a) - Consent of Price Waterhouse LLP.
23(b) - Consent of Ernst & Young LLP.
23(c) - Consents of Philip R. Halverson, Esq., and Reid &
Priest LLP are contained in Exhibits 5(a) and 5(b),
respectively.
24 - Power of Attorney (see page II-6).
25(a) - Statement on Form T-1 of The Bank of New York.
25(b) - Statement on Form T-2 of W.T. Cunningham.
-------------------
+ Incorporated herein by reference as indicated.
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 represent no more than a
II-4
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement.
Provided, however, that paragraphs (i) and (ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(5) 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, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-5
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes any
agent for service named in this registration statement to execute in
the name of each such person, and to file with the Securities and
Exchange Commission, any and all amendments, including post-effective
amendments, to the registration statement, and appoints any such agent
for service as attorney-in-fact to sign in each such person's behalf
individually and in each capacity stated below and file any such
amendments to the registration statement and the registrant hereby
also appoints each such agent for service as its attorney-in-fact with
like authority to sign and file any such amendments in its name and
behalf.
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 Duluth, State of
Minnesota, on January 29, 1997.
MINNESOTA POWER & LIGHT COMPANY
(Registrant)
By /s/ Edwin L. Russell
-----------------------------
Edwin L. Russell
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Edwin L. Russell Chairman, President, January 29, 1997
------------------------- Chief Executive
Edwin L. Russell Officer
Chairman, President, and Director
Chief Executive Officer
and Director
/s/ D. G. Gartzke Senior Vice President- January 29, 1997
------------------------- Finance and
D. G. Gartzke Chief Financial
Senior Vice President-Finance Officer
and Chief Financial
Officer
/s/ Mark A. Schober Corporate Controller January 29, 1997
-------------------------
Mark A. Schober
Corporate Controller
II-6
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Merrill K. Cragun Director January 29, 1997
-------------------------
Merrill K. Cragun
/s/ Dennis E. Evans Director January 29, 1997
-------------------------
Dennis E. Evans
/s/ Peter J. Johnson Director January 29, 1997
-------------------------
Peter J. Johnson
/s/ George L. Mayer Director January 29, 1997
--------------------------
George L. Mayer
/s/ Paula F. McQueen Director January 29, 1997
-------------------------
Paula F. McQueen
/s/ Robert S. Nickoloff Director January 29, 1997
-------------------------
Robert S. Nickoloff
/s/ Jack I. Rajala Director January 29, 1997
------------------------
Jack I. Rajala
/s/ Arend J. Sandbulte Director January 29, 1997
-----------------------
Arend J. Sandbulte
/s/ Nick Smith Director January 29, 1997
-----------------------
Nick Smith
/s/ Bruce W. Stender Director January 29, 1997
-----------------------
Bruce W. Stender
/s/ Donald C. Wegmiller Director January 29, 1997
------------------------
Donald C. Wegmiller
II-7
EXHIBIT INDEX
Exhibit Description
------- -----------
1 - Form of Underwriting Agreement.
+4(a)1 - Articles of Incorporation, restated as of July 27,
1988 (filed as Exhibit 3(a), File No. 33-24936).
+4(a)2 - Certificate Fixing Terms of Serial Preferred Stock
A, $7.125 Series (filed as Exhibit 3(a)2, File No.
33-50143).
+4(a)3 - Certificate Fixing Terms of Serial Preferred Stock
A, $6.70 Series (filed as Exhibit 3(a)3, File No.
33-50143).
+4(b) - Bylaws as amended January 23, 1991 (filed as
Exhibit 3(b), File No. 33-45549).
+4(c)1 - Mortgage and Deed of Trust, dated as of September
1, 1945, between the Company and Irving Trust
Company (now The Bank of New York) and Richard H.
West (W. T. Cunningham, successor), as Trustees
(filed as Exhibit 7(c), File No. 2-5865).
+4(c)2 - Supplemental Indentures to Mortgage and Deed of
Trust:
Reference
---------
Number Dated as of File Exhibit
------ ---------- ---- -------
First March 1, 1949 2-7826 7(b)
Second July 1, 1951 2-9036 7(c)
Third March 1, 1957 2-13075 2(c)
Fourth January 1, 1968 2-27794 2(c)
Fifth April 1, 1971 2-39537 2(c)
Sixth August 1, 1975 2-54116 2(c)
Seventh September 1, 1976 2-57014 2(c)
Eighth September 1, 1977 2-59690 2(c)
Ninth April 1, 1978 2-60866 2(c)
Tenth August 1, 1978 2-62852 2(d)2
Eleventh December 1, 1982 2-56649 4(a)3
Twelfth April 1, 1987 33-30224 4(a)3
Thirteenth March 1, 1992 33-47438 4(b)
Fourteenth June 1, 1992 33-55240 4(b)
Fifteenth July 1, 1992 33-55240 4(c)
Sixteenth July 1, 1992 33-55240 4(d)
Seventeenth February 1, 1993 33-50143 4(b)
Eighteenth July 1, 1993 33-50143 4(c)
4(d) - Form of Supplemental Indenture relating to the New
Bonds.
+4(e) - Mortgage and Deed of Trust, dated as of March 1,
1943, between Superior Water, Light and Power
Company and Chemical Bank & Trust Company and
Howard B. Smith, as Trustees (First Bank N.A.,
successor Trustee) (filed as Exhibit 7(c), File
No. 2-8668), as supplemented and modified by First
Supplemental Indenture thereto dated as of
March 1, 1951 (filed as Exhibit 2(d)(1), File No. 2-
59690), Second Supplemental Indenture thereto dated
as of March 1, 1962 (filed as Exhibit 2(d)1, File
No. 2-27794), Third Supplemental Indenture thereto
dated as of July 1, 1976 (filed as Exhibit 2(e)1,
File No. 2-57478), Fourth Supplemental Indenture
thereto dated as of March 1, 1985 (filed as Exhibit
4(b), File No. 2-78641), and Fifth Supplemental
Indenture thereto, dated as of December 1, 1992
(filed as Exhibit 4(b)1 to Form 10-K for the year
ended December 31, 1992, File No. 1-3548).
+4(f) - Amended and Restated Trust Agreement, dated as of
March 1, 1996, relating to MP&L Capital I's 8.05%
Cumulative Quarterly Income Preferred Securities,
between the Company, as Depositor, and The Bank of
New York, The Bank of New York (Delaware), Philip R.
Halverson, David G. Gartzke and James K. Vizanko, as
Trustees (filed as Exhibit 4(a) to Form 10-Q for the
quarter ended March 31, 1996, File No. 1-3548).
+4(g) - Amendment No. 1, dated April 11, 1996, to Amended
and Restated Trust Agreement, dated as of March 1,
1996, relating to MP&L Capital I's 8.05% Cumulative
Quarterly Income Preferred Securities (filed as
Exhibit 4(b) to Form 10-Q for the quarter ended
March 31, 1996, File No. 1-3548).
+4(h) - Indenture, dated as of March 1, 1996, relating to
the Company's 8.05% Junior Subordinated Debentures,
Series A, Due 2015, between the Company and The Bank
of New York, as Trustee (filed as Exhibit 4(c) to
Form 10-Q for the quarter ended March 31, 1996, File
No. 1-3548).
+4(i) - Guarantee Agreement, dated as of March 1, 1996,
relating to MP&L Capital I's 8.05% Cumulative
Quarterly Income Preferred Securities, between the
Company, as Guarantor, and The Bank of New York, as
Trustee (filed as Exhibit 4(d) to Form 10-Q for the
quarter ended March 31, 1996, File No. 1-3548).
+4(j) - Agreement as to Expenses and Liabilities dated as of
March 20, 1996, relating to MP&L Capital I's 8.05%
Cumulative Quarterly Income Preferred Securities,
between the Company and MP&L Capital I (filed as
Exhibit 4(e) to Form 10-Q for the quarter ended
March 31, 1996, File No. 1-3548).
+4(k) - Rights Agreement dated as of July 24, 1996 between
Minnesota Power & Light Company and the Corporate
Secretary of Minnesota Power & Light Company, as
Rights Agent, including Exhibit A - Form of
Certificate of Resolution Fixing Terms of Junior
Serial Preferred Stock A, Exhibit B - Form of Right
Certificate and Exhibit C - Summary of the Rights
Plan (filed as Exhibit 4 to Form 8-K dated August 2,
1996, File No. 1-3548).
5(a) - Opinion and Consent of Philip R. Halverson, Esq.,
Vice President, General Counsel and Corporate
Secretary of the Company.
5(b) - Opinion and Consent of Reid & Priest LLP.
12 - Computation of Ratios of Earnings to Fixed Charges
and Supplemental Ratios of Earnings to Fixed
Charges.
23(a) - Consent of Price Waterhouse LLP.
23(b) - Consent of Ernst & Young LLP.
23(c) - Consents of Philip R. Halverson, Esq., and Reid &
Priest LLP are contained in Exhibits 5(a) and 5(b),
respectively.
24 - Power of Attorney (see page II-6).
25(a) - Statement on Form T-1 of The Bank of New York.
25(b) - Statement on Form T-2 of W.T. Cunningham.
-------------------
+ Incorporated herein by reference as indicated.
Exhibit 1
[$______________]
Minnesota Power & Light Company
First Mortgage Bonds, [__%] Series Due [___________, 20__]
UNDERWRITING AGREEMENT
[__________, 199_]
New York, New York
[Insert Name(s)
and Address(es)
of Underwriter(s)]
Dear Sirs:
Minnesota Power & Light Company, a public utility
incorporated under the laws of Minnesota (the "Company"),
proposes to issue and sell to you (the "Underwriter"),
[$__________] principal amount of its First Mortgage Bonds, [__%]
Series Due [___________, 20__] (the "Bonds"). The Bonds will be
issued under the Company's Mortgage and Deed of Trust, dated as
of September 1, 1945, to Irving Trust Company (now The Bank of
New York) and Richard D. West (W. T. Cunningham, successor), as
Trustees, as supplemented and as it will be further supplemented
by a [________] Supplemental Indenture, to be dated as of
[____________, 199_], in substantially the form heretofore
delivered to the Underwriter (the "[__________] Supplemental
Indenture"). The Mortgage and Deed of Trust, as to be
supplemented, are hereinafter referred to as the "Mortgage."
1. Sale and Purchase. The Company will issue and
-----------------
sell to the Underwriter, and the Underwriter will purchase from
the Company, [$______________] in aggregate principal amount of
the Bonds at a purchase price of [____%] of their principal
amount, plus accrued interest, if any, from [__________, 199_] to
the date of payment for and delivery of the Bonds. The
obligations of the Company and the Underwriter under this
Agreement are undertaken on the basis of the representations and
are subject to the conditions in this Agreement.
2. Payment and Delivery. Delivery by the Company of
--------------------
the Bonds to the Underwriter, and payment of the purchase price
by certified or official bank check or checks payable in New York
Clearing House (next-day) funds to the Company, will take place
at the offices of Reid & Priest LLP, 40 West 57th Street, New
York, New York, at 10:00 a.m., New York City time, on
[____________, 199_], or at such time on such other date as may
be agreed upon by the Company and the Underwriter (the "Closing
Date").
The Bonds will be in definitive fully-registered form
without coupons, registered in such names and in such
denominations as the Underwriter requests at least three full
business days before the Closing Date. If no such request is
received by said time, the Company shall have the right to
deliver the Bonds registered in the name of the Underwriter in
such denominations as the Company may determine. The Bonds will
be made available to the Underwriter for checking and packaging,
at the offices of The Bank of New York, One Wall Street, New
York, New York, at least one full business day before the Closing
Date.
3. Registration Statement and Prospectus; Public
---------------------------------------------
Offering. The Company has filed with the Securities and Exchange
--------
Commission (the "Commission"), pursuant to the Securities Act of
1933 (the "Securities Act") and the published rules and
regulations adopted by the Commission under it (the "Rules"), a
registration statement on Form S-3, including a combined
prospectus ("Registration Statement No. 333-[______]"), relating
to the registration of $75,000,000 principal amount of its First
Mortgage Bonds, and such registration statement was declared
effective on [___________, 199_]. The Company has also filed
with the Commission pursuant to the Securities Act a registration
statement on Form S-3, including a prospectus ("Registration
Statement No. 33-55240"), relating to the registration of
$80,000,000 principal amount of its First Mortgage Bonds, of
which all but $5,000,000 principal amount have been previously
issued. The term "preliminary prospectus" means any preliminary
prospectus (as referred to in Rule 430 of the Rules) included at
any time as a part of Registration Statement No. 333-[______].
Copies of such registration statements and any amendments thereto
and of each preliminary prospectus included as part of
Registration Statement No. 333-[______] have been delivered to
the Underwriter. Registration Statement No. 333-[______] and
Registration Statement No. 33-55240, each as may be amended to
the date of this Agreement, including financial statements and
all exhibits, and the combined prospectus, as supplemented by a
prospectus supplement relating to the Bonds, proposed to be filed
pursuant to Rule 424 are hereinafter respectively called the
"Registration Statements" and the "Prospectus." References
herein to the term "Effective Date" shall be deemed to refer to
the later of the time and date Registration Statement No. 333-
[______] was declared effective or the time and date of the
filing of the Company's most recent Annual Report on Form 10-K if
such filing is made prior to the Closing Date. Any reference
herein to the Registration Statements, any preliminary prospectus
or the Prospectus includes the documents incorporated by
reference (the "Incorporated Documents") therein pursuant to Item
12 of Form S-3 under the Securities Act and filed under the
Securities Exchange Act of 1934 (the "Exchange Act") on or before
the Effective Date or date of such preliminary prospectus or the
Prospectus, as the case may be, and any reference herein to
"amend," "amendment" or "supplement" with respect to the
Registration Statements, any preliminary prospectus or the
Prospectus includes the filing of any document under the Exchange
Act after the Effective Date or the date of any preliminary
prospectus or the Prospectus, as the case may be, and
incorporated in such document by reference if such filing is made
prior to the Closing Date.
The Company understands that the Underwriter proposes
to make a public offering of the Bonds, as described in the
Prospectus, as soon after the date of this Agreement as the
Underwriter deems advisable. The Company confirms that the
Underwriter and dealers have been authorized to distribute each
preliminary prospectus, if any, and are authorized to distribute
the Prospectus and any amendments or supplements to it.
4. Representations of the Company. The Company
------------------------------
represents to the Underwriter as follows:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act.
(b) On the Effective Date, and at the Closing
Date, the Registration Statements and, at the date of the filing
of the Prospectus, and at the Closing Date, the Prospectus, as
each may be amended or supplemented, and the Mortgage fully
complied or will fully comply in all material respects with the
applicable provisions of the Securities Act, the Trust Indenture
Act of 1939 (the "Trust Indenture Act") and the Rules, or
pursuant to the Rules will be deemed to comply therewith; on said
Effective Date and Closing Date the Registration Statements, as
each may be amended or supplemented, did not or will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; on said date of filing of
the Prospectus and the Closing Date, the Prospectus, as it may be
amended or supplemented, will not contain an untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and on
said date of filing of the Prospectus and the Closing Date, the
Incorporated Documents will fully comply in all material respects
with the applicable provisions of the Exchange Act and the rules
and regulations of the Commission thereunder (the "Exchange Act
Rules"), and, when read together with the Prospectus, as it may
be amended or supplemented, will not contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; except that this representation does not apply to (1)
statements or omissions made in reliance on and in conformity
with information relating to the Underwriter furnished in writing
to the Company by the Underwriter expressly for use in the
Registration Statements or the Prospectus, as they may be amended
or supplemented or (2) the portion of the Registration Statements
constituting the respective Statements of Eligibility and
Qualification, or amendments thereto, of The Bank of New York and
W. T. Cunningham, as Trustees, under the Trust Indenture Act
except statements or omissions made in reliance on and in
conformity with information furnished in writing to the Trustee
by or on behalf of the Company for use in such Statements of
Eligibility and Qualification or any amendments thereto.
(c) Since the respective dates as of which
information is given in the Registration Statements and the
Prospectus, as they may be amended or supplemented, there has not
been any material adverse change in the management, business,
properties, financial condition or results of operations of the
Company and its subsidiaries taken as a whole, and there has not
been any material transaction entered into by the Company or its
subsidiaries, other than transactions in the ordinary course of
business and transactions set forth in or contemplated by the
Registration Statements and the Prospectus, as they may be
amended or supplemented. The Company and its subsidiaries have
no material contingent obligation which is not disclosed in the
Registration Statements and the Prospectus, as they may be
amended or supplemented.
(d) Any Incorporated Documents filed and
incorporated by reference prior to the Closing Date shall, when
they are filed with the Commission, conform in all material
respects with the requirements of the Exchange Act and the
Exchange Act Rules.
(e) The Company has full corporate power and
authority to enter into this Agreement. This Agreement has been
duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company enforceable against it
in accordance with its terms.
(f) The consummation of the transactions
contemplated by this Agreement and the fulfillment of its terms
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 material agreement or instrument to which the
Company is now a party.
(g) The Bonds, when issued and delivered as
provided in this Agreement, will constitute legal, valid and
binding obligations of the Company in accordance with their terms
except as the same (1) may be subject to bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
the enforcement of creditors' rights and (2) may be limited by
general principles of equity (whether such enforceability is
considered in a proceeding in equity or in law).
(h) The description of the Bonds in Registration
Statement No. 333-[______] and the Prospectus, as they may be
amended or supplemented, is, and at the Closing Date will be,
complete and accurate in all respects. The [________]
Supplemental Indenture conforms to the description thereof
contained in the Registration Statements and the Prospectus, as
they may be amended or supplemented.
(i) The Company has filed a Petition for
Certification of Capital Structure with the Minnesota Public
Utilities Commission ("Minnesota Commission") pursuant to the
Minnesota Public Utilities Act with respect to the issuance and
sale by the Company of the Bonds. The Minnesota Commission has
entered an authorizing order approving the capital structure
including the issuance and sale of the Bonds. Apart from such
authorizing order of the Minnesota Commission, no consent,
approval, authorization or order of, or any filing or declaration
with, any court or governmental agency or body is required for
the consummation by the Company of the transactions on its part
herein contemplated, except such as have been obtained under the
Securities Act or the Rules.
5. Agreements of the Company. (a) The Company will
-------------------------
not file any amendment or supplement to the Registration
Statements or the Prospectus unless a copy has first been
submitted to the Underwriter a reasonable time before its filing
and the Underwriter has not reasonably objected to it in writing
within a reasonable time after receiving the copy.
(b) The Company will promptly advise the
Underwriter (1) of the initiation or threatening of any
proceedings for, or receipt by the Company of any notice with
respect to, the suspension of the qualification of the Bonds for
sale in any jurisdiction or the issuance of any order by the
Commission suspending the effectiveness of the Registration
Statements and (2) of receipt by the Company or any
representative or attorney of the Company of any other
communication from the Commission relating to the Company, the
Registration Statements, any preliminary prospectus or the
Prospectus or to the transactions contemplated by this Agreement.
The Company will make every reasonable effort to prevent the
issuance of an order suspending the effectiveness of the
Registration Statements and, if any such order is issued, to
obtain its lifting as soon as possible.
(c) The Company will deliver to the Underwriter
without charge one signed copy, or one conformed copy certified
by an officer of the Company, of each of the Registration
Statements and of any amendments thereto (including all exhibits
filed with any such document) and as many conformed copies of the
Registration Statements as the Underwriter may reasonably
request.
(d) During such period as a prospectus is
required by law to be delivered by the Underwriter or a dealer,
the Company will deliver, without charge, to the Underwriter and
to dealers, at such office or offices as the Underwriter may
designate, as many copies of the Prospectus as the Underwriter
may reasonably request, and, during such period (not exceeding
nine months) after the Effective Date if any event occurs as a
result of which it is necessary to amend or supplement the
Prospectus in order to make the statements in it, in the light of
the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading in any material respect, or if during
such period it is necessary to amend or supplement the Prospectus
to comply with the Securities Act or Rules, the Company will
promptly prepare, submit to the Underwriter, file, subject to
paragraph (a) of this Section, with the Commission and deliver,
without charge, to the Underwriter and to dealers (whose names
and addresses the Underwriter will furnish to the Company) to
whom Bonds may have been sold by the Underwriter, and to other
dealers on request, amendments or supplements to the Prospectus
so that the statements in the Prospectus, as so amended or
supplemented, will not, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, be
misleading in any material respect and will comply with the
Securities Act and the Rules; provided that should such event
relate solely to the activities of the Underwriter, then the
Underwriter shall assume the expense of preparing and furnishing
any such amendment or supplement. In case the Underwriter is
required to deliver a Prospectus after the expiration of nine
months from the Effective Date, the Company, upon the request of
the Underwriter, will furnish to the Underwriter, at the expense
of the Underwriter, a reasonable quantity of an amendment or
supplement complying with Section 10(a) of the Securities Act.
Delivery by the Underwriter of any such amendments or supplements
to the Prospectus will not constitute a waiver of any of the
conditions in Section 6.
(e) The Company will make generally available to
the Company's security holders, as soon as practicable but in no
event later than the last day of the 15th full calendar month
following the calendar quarter in which the Effective Date falls,
an earnings statement satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Rules.
(f) The Company will take such actions as the
Underwriter reasonably designates in order to qualify the Bonds
for offer and sale under the securities or "blue sky" laws of
such jurisdictions as the Underwriter reasonably designates.
(g) The Company will pay, or reimburse if paid by
the Underwriter, whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated,
all costs and expenses incident to the performance of the
obligations of the Company under this Agreement, including costs
and expenses relating to (1) the preparation, printing and filing
of the Registration Statements and exhibits thereto, each
preliminary prospectus, the Prospectus, all amendments and
supplements to the Registration Statements and the Prospectus,
except as provided in Section 5(d), the printing or other
reproduction of the [________] Supplemental Indenture, which
[_________] Supplemental Indenture is to be promptly filed and
recorded after execution and delivery of it to the Trustees, in
the counties where the mortgaged property of the Company is
located, (2) the authorization and issuance of the Bonds and the
preparation and delivery of the forms of the Bonds sold by the
Company to the Underwriter, (3) the registration or qualification
of the Bonds for offer and sale under the securities or "blue
sky" laws of the jurisdictions referred to in the foregoing
paragraph and the determination of the legality of the Bonds for
investment, including the reasonable fees and disbursements of
counsel for the Underwriter (not to exceed $______) in that
connection, and the preparation and printing of preliminary and
supplemental "blue sky" memoranda and legal investment memoranda,
(4) except as provided in Section 5(d), the furnishing (including
costs of shipping and mailing) to the Underwriter and to dealers
of copies of the Registration Statements, each preliminary
prospectus, the Prospectus, and all amendments or supplements to
the Prospectus, and of the other documents required by this
Section to be so furnished, (5) any fees charged by securities
rating services for rating the Bonds, (6) all transfer taxes, if
any, with respect to the sale and delivery of the Bonds by the
Company to the Underwriter, and (7) the fees and expenses of the
Trustees, and Paying Agent or Registrar under the [_________]
Supplemental Indenture and the reasonable fees and disbursements
of counsel for any Trustee in connection with the [_________]
Supplemental Indenture or the Bonds.
6. Conditions of the Underwriter's Obligation. The
------------------------------------------
obligation of the Underwriter to purchase the Bonds is subject to
the accuracy, on the date of this Agreement and on the Closing
Date, of the representations of the Company in this Agreement, to
the accuracy and completeness of all statements made by the
Company or any of its officers in any certificate delivered to
the Underwriter or its counsel pursuant to this Agreement, to
performance by the Company of its obligations under this
Agreement and to each of the following additional conditions:
(a) All filings required by Rule 424 of the Rules
must have been made.
(b) No order suspending the effectiveness of the
Registration Statements may be in effect and no proceedings for
such purpose may be pending before or threatened by the
Commission, and any requests for additional information on the
part of the Commission (to be included in the Registration
Statements or the Prospectus or otherwise) must have been
complied with.
(c) Since the respective dates as of which such
information is given in the Registration Statements and the
Prospectus, as they may be amended or supplemented, (1) there
must not have been any material change in the capital stock or
long-term debt of the Company and its subsidiaries, taken as a
whole, (2) there must not have been any material adverse change
in the management, business, properties, financial condition, or
results of operations of the Company and its subsidiaries, taken
as a whole, other than transactions in the ordinary course of
business and transactions set forth in or contemplated by the
Prospectus, and (3) there must not have occurred any event that
makes untrue or incorrect in any material respect any statement
or information contained in the Prospectus or that is not
reflected in the Prospectus but should be reflected in it in
order to make the statements or information in it not misleading
in any material respect; and in the judgment of the Underwriter,
any such development referred to in clause (1), (2) or (3) makes
it impracticable or inadvisable to consummate the sale and
delivery of the Bonds by the Underwriter at the initial public
offering price.
(d) The Underwriter must have received on the
Closing Date a certificate, dated such date, of the chief
executive officer, the chief operating officer or the chief
financial officer of the Company certifying that (1) the signer
has carefully examined the Registration Statements and the
Prospectus (including any Incorporated Documents) and this
Agreement, (2) the representations of the Company in this
Agreement are accurate on and as of the date of the certificate,
(3) there has not been any material adverse change in the
management, business, properties, financial condition or results
of operations of the Company and its subsidiaries, taken as a
whole, other than transactions in the ordinary course of business
and transactions set forth in or contemplated in the Prospectus,
(4) to the knowledge of such officer, no order suspending the
effectiveness of the Registration Statements or prohibiting the
sale of the Bonds has been issued and no proceedings for such
purpose are pending before or threatened by the Commission, (5)
there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules that upon such filing
would be deemed to be an Incorporated Document that has not been
so filed, and (6) the Company has performed all agreements that
this Agreement requires it to perform by the Closing Date.
(e) Since the date of this Agreement, there must
not have been any decreases in the rating of the Company's First
Mortgage Bonds by Moody's Investor Service, Inc. or Standard &
Poor's Corporation.
(f) The Underwriter must receive on the Closing
Date opinions dated the Closing Date substantially in the form of
Annex A-1 and A-2 to this Agreement from the counsel identified
in Annex A-1 and A-2, respectively.
(g) The Underwriter must receive on the Closing
Date from Lane & Mittendorf LLP, its counsel, an opinion dated
the Closing Date with respect to the Company, the Bonds, the
Registration Statements, the Prospectus, the [________]
Supplemental Indenture, this Agreement and the form and
sufficiency of all proceedings taken in connection with the sale
and delivery of the Bonds. Such opinion and proceedings shall be
satisfactory in all respects to the Underwriter. The Company
must have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to render
such opinion.
(h) The Underwriter must receive on the Closing
Date a signed letter, dated the Closing Date, from Price
Waterhouse LLP to the effect that (1) they are independent public
accountants with respect to the Company within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder, (2) in their opinion, the consolidated financial
statements audited by them and incorporated by reference in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the published rules and regulations thereunder
with respect to registration statements on Form S-3, (3) on the
basis of a reading of the unaudited consolidated financial
statements of the Company incorporated by reference in the
Prospectus, the latest available unaudited consolidated
financial data of the Company since the close of the Company's
most recent audited fiscal year, the minutes and consents of the
Board of Directors since the end of the most recent audited
fiscal year, and inquiries of officials of the Company who have
responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an
audit made in accordance with generally accepted auditing
standards and would not necessarily reveal matters of
significance with respect to the comments made in such letter,
and, accordingly, that Price Waterhouse LLP makes no
representations as to the sufficiency of such procedures for the
Underwriter's purposes), nothing has come to their attention
which caused them to believe that (i) the unaudited consolidated
financial statements of the Company incorporated by reference in
the Prospectus (1) do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the published rules
and regulations thereunder or (2) are not stated on a basis
substantially consistent with that of the audited consolidated
financial statements of the Company incorporated by reference in
the Prospectus, (ii) at the date of the latest available
unaudited financial data read by them and at a specified date not
more than five days prior to the Closing Date there was any
change in the capital stock or long-term debt of the Company and
its subsidiaries, or any decrease in the Company's consolidated
net current assets or shareholders' equity, in each case as
compared with amounts shown in the most recent consolidated
financial information incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus, as amended or supplemented, discloses have
occurred or may occur, or which are disclosed in such letter, or
(iii) for the period from the date of the most recent audited
consolidated financial statements to the date of the latest
available unaudited financial data read by them and for the
period from the date of the latest available unaudited financial
data read by them to a specified date not more than five days
prior to the Closing Date, there were any decreases, as compared
with the corresponding period in the preceding year, in
consolidated operating revenues or in the total or per average
share amounts of net income, except in all instances for
decreases which the Prospectus, as amended or supplemented,
discloses have occurred or may occur, or which are disclosed in
such letter, and (4) they have carried out certain procedures and
made certain findings, as specified in such letter, with respect
to certain amounts included or incorporated by reference in
Registration Statement No. 333-[______] and the Prospectus and
such other items as the Underwriter may reasonably request.
(i) The Underwriter must receive on the Closing
Date a signed letter, dated the Closing Date, from Ernst & Young
LLP substantially in the form of Annex A-3 to this Agreement.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement will comply with
this Agreement only if they are in form and scope satisfactory to
counsel for the Underwriter.
7. Indemnification. (a) The Company will indemnify
---------------
and hold harmless the Underwriter, the directors, officers,
employees and agents of the Underwriter, and each person, if any,
who controls the Underwriter, within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any
and all losses, claims, damages and liabilities, joint or several
(including any investigation, legal or other expenses reasonably
incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to
which they, or any of them, may become subject under the
Securities 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 arise out of or
are based on any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus, the
Registration Statements or the Prospectus or any amendment or
supplement to the Registration Statements or the Prospectus
(including any Incorporated Document), or the omission or alleged
omission to state in it a material fact required to be stated in
it or necessary to make the statements in it not misleading,
provided that the Company will not be liable to the extent that
such loss, claim, damage, or liability arises from the sale of
the Bonds in the public offering to any person by the Underwriter
and is based on an untrue statement or omission or alleged untrue
statement or omission (1) made in reliance on and in conformity
with information furnished in writing to the Company by the
Underwriter expressly for use in the document or (2) in a
preliminary prospectus if the Prospectus corrects the untrue
statement or omission or alleged untrue statement or omission
which is the basis of the loss, claim, damage or liability for
which indemnification is sought and a copy of the Prospectus was
not sent or given to such person at or before the confirmation of
the sale to such person in any case where such delivery is
required by the Securities Act, unless such failure to deliver
the Prospectus was a result of noncompliance by the Company with
Section 5(d). This indemnity agreement will be in addition to
any liability that the Company might otherwise have.
(b) The Underwriter will indemnify and hold
harmless the Company, its officers and directors, and each
person, if any, who controls any thereof within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only insofar as losses, claims,
damages or liabilities arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission
made in or in reliance on and in conformity with information
furnished in writing to the Company by the Underwriter expressly
for use in preparation of the documents in which the statement or
omission is made or alleged to be made. The Company acknowledges
that the statements on the cover page with respect to the price
to the public, underwriting discounts and commissions and
proceeds to the Company, statements with respect to stabilization
on the second page of, and the statements under the caption
"Underwriting" in, any preliminary prospectus and the Prospectus
constitute the only information furnished in writing to the
Company by the Underwriter expressly for use in any such
document. This indemnity agreement will be in addition to any
liability that the Underwriter might otherwise have.
(c) Any party that proposes to assert the right
to be indemnified under this Section will, promptly after receipt
of notice of commencement of any action against such party in
respect of which a claim is to be made against an indemnifying
party or parties under this Section, notify in writing each such
indemnifying party of the commencement of such action, enclosing
a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve it from any liability that it
may have to any indemnified party otherwise than under this
Section. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in, and,
to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the
indemnified party, and, after notice from the indemnifying party
to the indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the indemnified
party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its counsel
in any such action, but the fees and expenses of such counsel
will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the
indemnified party has been advised by such counsel employed by it
that there may be legal defenses available to it involving
potential conflict with the interests of an indemnifying party
(in which case the indemnifying party will not have the right to
direct the defense of such action on behalf of the indemnified
party) or (3) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in
each of which cases the fees and expenses of counsel will be at
the expense of the indemnifying party or parties and all such
fees and expenses will be reimbursed promptly as they are
incurred. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written
consent or, in connection with any proceeding or related
proceeding in the same jurisdiction, for the fees and expenses of
more than one separate counsel for all indemnified parties.
8. Contribution. If recovery is not available under
------------
the foregoing indemnification provisions of Section 7, for any
reason other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, except to the extent
that contribution is not permitted under Section 11(f) of the
Securities Act. In determining the amount of contribution to
which the respective parties are entitled, there shall be
considered the relative benefits received by each party from the
offering of the Bonds (taking into account the portion of the
proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with
respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances.
The Company and the Underwriter agree that it would not be
equitable if the amount of such contribution were determined by
pro rata or per capita allocation. No person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
9. Termination. This Agreement may be terminated by
-----------
the Underwriter by notifying the Company at any time
(a) at or before the Closing Date if, in the
judgment of the Underwriter, payment for the delivery of the
Bonds is rendered impracticable or inadvisable because (1)
trading in the equity securities of the Company is suspended
by the Commission or by the New York Stock Exchange, (2)
additional material governmental restrictions, not in force
on the date of this Agreement, are imposed upon trading in
securities generally or minimum or maximum prices have been
generally established on the New York Stock Exchange or on
the American Stock Exchange, or trading in securities
generally has been suspended or limited on either such
Exchange or a general banking moratorium has been
established by Federal or New York authorities, or (3) any
outbreak or material escalation of hostilities or other
calamity or crisis occurs the effect of which is such as to
make it impracticable to market the Bonds, or
(b) at or before the Closing Date, if any of the
conditions specified in Section 6 have not been fulfilled
when and as required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, except as otherwise provided, the Company will not be
under any liability to the Underwriter and the Underwriter will
not be under any liability to the Company, except that (A) if
this Agreement is terminated by the Underwriter because of any
failure or refusal on the part of the Company to comply with the
terms of this Agreement or because any of the conditions in
Section 6 are not satisfied, the Company will reimburse the
Underwriter for all reasonable out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred
by them in connection with the proposed purchase and sale of the
Bonds, and (B) if the Underwriter fails or refuses to purchase
the Bonds agreed to be purchased by it under this Agreement,
without some reason sufficient to justify cancellation or
termination of its obligations under this Agreement, it will not
be relieved of liability to the Company for damages occasioned by
its default.
The Company shall not in any event be liable to the
Underwriter for damages on account of loss of anticipated
profits.
10. Miscellaneous. The reimbursement, indemnification
-------------
and contribution agreements in Sections 5, 7, 8 and 9 and the
representations and agreements of the Company and the Underwriter
in this Agreement will remain in full force and effect regardless
of any termination of this Agreement, any investigation made by
or on behalf of the Underwriter, the Company, or any controlling
person and delivery of and payment for the Bonds.
This Agreement is for the benefit of the Underwriter,
the Company, and their successors and assigns, and, to the extent
expressed in this Agreement, for the benefit of persons
controlling the Underwriter or the Company, directors and
officers of the Company and directors, officers, employees and
agents of the Underwriter, and their respective successors and
assigns, and no other persons, partnership, association or
corporation shall acquire or have any right under or by virtue of
this Agreement. The term "successors and assigns" does not
include any purchaser of Bonds from the Underwriter merely
because of such purchase.
All notices and communications under this Agreement
will be in writing and mailed or delivered, by messenger,
facsimile transmission or otherwise, to the Underwriter at
[_______________________________________________________________]
Attention: [____________________] and to the Company, at 30 West
Superior Street, Duluth, Minnesota 55802, Attention: Chief
Financial Officer. Any such notice or communication shall take
effect upon receipt thereof.
This Agreement may be signed in multiple counterparts
that taken as a whole constitute one agreement.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Please confirm that the foregoing correctly sets forth
the agreement between us.
Very truly yours,
MINNESOTA POWER & LIGHT COMPANY
By:______________________________
Title:
Confirmed:
[Name(s) of Underwriter(s)]
By:__________________________________
Title:
ANNEX A-1
FORM OF OPINION OF REID & PRIEST LLP
[__________, 199_]
[Insert Name(s)
and Address(es)
of Underwriter(s)]
Dear Sirs:
Reference is made to the sale by Minnesota Power &
Light Company ("Company") of [$________] principal amount of its
First Mortgage Bonds, __% Series Due [____________, 20__] (the
"Bonds"). The Bonds will be issued under the Company's Mortgage
and Deed of Trust, dated as of September 1, 1945, to Irving Trust
Company (now The Bank of New York) and Richard H. West (W. T.
Cunningham, successor), as Trustees, as amended and supplemented
by all indentures supplemental thereto, including a
[____________] Supplemental Indenture thereto dated as of
[____________, 199_] (said Mortgage and Deed of Trust, as so
supplemented, being hereinafter called the "Mortgage"). We
advise you that we have acted as counsel to the Company in
connection with such issuance and sale and have participated in
the preparation of (a) the Mortgage; (b) Registration Statement
Nos. 333-[______] and 33-55240, each as filed by the Company with
the Securities and Exchange Commission for the registration of
the Company's First Mortgage Bonds under the Securities Act of
1933, as amended (the "Act"), and for the qualification under the
Trust Indenture Act of 1939 of the Mortgage (such registration
statements, as amended at the Effective Date (as such term is
defined in the Agreement referred to below), being hereinafter
collectively referred to as the "Registration Statements"); (c)
the combined prospectus constituting part of Registration
Statement No. 333-[______], as amended and supplemented by a
prospectus supplement relating to the Bonds ("Prospectus"); and
(d) the Underwriting Agreement dated [_____________, 199_]
between the Company and you ("Agreement"). In addition, we have
reviewed the petition filed by the Company with the Minnesota
Public Utilities Commission seeking authorization to issue the
Bonds, and the order issued by said Commission in response to
said petition.
We have reviewed all corporate proceedings taken by the
Company in respect of the authorization of the Mortgage and the
issuance and sale of the Bonds thereunder.
Upon the basis of our familiarity with these
transactions, we are of the opinion that:
1. The Mortgage has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, and is a valid and binding mortgage of
the Company enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws affecting
enforcement of mortgagees' and other creditors' rights generally
and equitable limitations on the enforceability of specific
remedies.
2. The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms, except
as limited by bankruptcy, insolvency or other laws affecting
enforcement of mortgagees' and other creditors' rights generally
and equitable limitations on the enforceability of specific
remedies and are entitled to the benefit of the security afforded
by the Mortgage.
3. An authorizing order has been issued by the
Minnesota Public Utilities Commission certifying the Company's
capital structure and authorizing the issuance and sale of the
Bonds, and to the best of our knowledge, said order is still in
full force and effect; and no further approval, authorization,
consent or order of any public board or body (other than in
connection or in compliance with the provisions of the securities
or "blue sky" laws of any jurisdiction) is legally required for
the authorization of the issuance and sale of the Bonds.
4. The Registration Statements and the Prospectus
(except as to the financial statements, statement of income and
other financial or statistical data contained therein, upon which
we do not pass) comply as to form in all material respects with
the requirements of the Act and the applicable instructions,
rules and regulations of the Securities and Exchange Commission
thereunder; the Registration Statements have each become, and at
the date hereof each of the Registration Statements is, effective
under the Act, and to the best of our knowledge no proceedings
for a stop order with respect thereto are pending or threatened
under Section 8 of the Act.
5. The Mortgage is duly qualified under the Trust
Indenture Act of 1939.
6. The Mortgage and the Bonds conform, as to legal
matters, with the statements concerning them made in the
Prospectus under the headings "Description of New Bonds" and
"Certain Terms of the Offered Bonds."
7. The Agreement has been duly and validly
authorized, executed and delivered by the Company and is a valid
and legally binding obligation of the Company.
In passing upon the forms of the Registration
Statements and the Prospectus, we necessarily assume the
correctness and completeness of the statements made or included
therein by the Company and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in the Prospectus under the heading "Legal Opinions" and in
paragraph 6 above. In the course of the preparation by the
Company of the Registration Statements and the Prospectus, we
have had conferences with certain of its officers and
representatives, with other counsel for the Company and with
Price Waterhouse LLP and Ernst & Young LLP, the independent
certified public accountants who examined certain of the
Company's financial statements incorporated by reference in the
Registration Statements. Our examination of the Registration
Statements and the Prospectus, and our discussions in the
above-mentioned conferences did not disclose to us any
information which gives us reason to believe that, at the
Effective Date, the Registration Statements contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus at the time it was
filed electronically with the Commission pursuant to Rule 424,
and the Prospectus, as amended or supplemented at the date
hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do
not express any opinion or belief as to the financial statements,
statement of income or other financial or statistical data
contained in the Registration Statements or in the Prospectus.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of Minnesota. As to all
matters of Minnesota law (and as to the incorporation of the
Company, titles to property, franchises and the lien of the
Mortgage, upon which we do not pass), we have relied with your
consent upon the opinion of even date herewith addressed to you
by Philip R. Halverson, Esq., Vice President, General Counsel and
Corporate Secretary of the Company.
Very truly yours,
REID & PRIEST LLP
ANNEX A-2
FORM OF OPINION OF
PHILIP R. HALVERSON, ESQ.
VICE PRESIDENT, GENERAL COUNSEL
AND CORPORATE SECRETARY OF
MINNESOTA POWER & LIGHT COMPANY
[________, 199_]
[Insert Name(s)
and Address(es)
of Underwriter(s)]
Dear Sirs:
Reference is made to the sale by Minnesota Power &
Light Company ("Company") of [$___________] principal amount of
its First Mortgage Bonds, [__%] Series Due [___________, 20__]
(the "Bonds"). The Bonds will be issued under the Company's
Mortgage and Deed of Trust, dated as of September 1, 1945, to
Irving Trust Company (now The Bank of New York) and Richard H.
West (W. T. Cunningham, successor), as Trustees, as amended and
supplemented by all indentures supplemental thereto, including a
[____________] Supplemental Indenture thereto dated as of
[___________, 199_] (said Mortgage and Deed of Trust, as so
supplemented, being hereinafter called the "Mortgage"). I advise
you that I am General Counsel to the Company and have acted in
that capacity in connection with such issuance and sale and have
participated in the preparation of (a) the Mortgage; (b)
Registration Statement Nos. 333-[_______] and 33-55240, each as
filed by the Company with the Securities and Exchange Commission
for the registration of the Company's First Mortgage Bonds under
the Securities Act of 1933, as amended (the "Act"), and for the
qualification under the Trust Indenture Act of 1939 of the
Mortgage (such registration statements, as amended at the
Effective Date (as such term is defined in the Agreement referred
to below), being hereinafter collectively referred to as the
"Registration Statements"); (c) the combined prospectus
constituting part of Registration Statement No. 333-[______], as
amended and supplemented by a prospectus supplement relating to
the Bonds ("Prospectus"); (d) the Underwriting Agreement dated
[_________, 199_] between the Company and you ("Agreement"); and
(e) the petition filed by the Company with the Minnesota Public
Utilities Commission seeking authorization to issue the Bonds.
In addition, I have reviewed the order issued by said Commission
in response to said petition.
I have reviewed all corporate proceedings taken by the
Company in respect of the authorization of the Mortgage and the
issuance and sale of the Bonds thereunder.
Upon the basis of my familiarity with these
transactions and with the Company's properties and affairs
generally, I am of the opinion that:
1. The Mortgage has been duly and validly authorized
by all necessary corporate action, has been validly executed and
delivered, and is a valid and binding mortgage of the Company
enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws affecting enforcement of
mortgagees' and other creditors' rights generally and equitable
limitations on the enforceability of specific remedies.
2. The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms, except
as limited by bankruptcy, insolvency or other laws affecting
enforcement of mortgagees' and other creditors' rights generally
and equitable limitations on the enforceability of specific
remedies and are entitled to the benefit of the security afforded
by the Mortgage.
3. An authorizing order has been issued by the
Minnesota Public Utilities Commission certifying the Company's
capital structure and authorizing the issuance and sale of the
Bonds, and to the best of my knowledge, said order is still in
full force and effect; and no further approval, authorization,
consent or order of any public board or body (other than in
connection or in compliance with the provisions of the securities
or "blue sky" laws of any jurisdiction) is legally required for
the authorization of the issuance and sale of the Bonds.
4. The Registration Statements and the Prospectus
(except as to the financial statements, statement of income and
other financial or statistical data contained therein, upon which
I do not pass) comply as to form in all material respects with
the requirements of the Act and the applicable instructions,
rules and regulations of the Securities and Exchange Commission
thereunder; the Registration Statements have each become, and at
the date hereof each of the Registration Statements is, effective
under the Act and to the best of my knowledge no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Act.
5. The Mortgage is duly qualified under the Trust
Indenture Act of 1939.
6. The Mortgage and the Bonds conform, as to legal
matters, with the statements concerning them made in the
Prospectus under the headings "Description of New Bonds" and
"Certain Terms of the Offered Bonds."
7. The Agreement has been duly and validly
authorized, executed and delivered by the Company and is a valid
and legally binding obligation of the Company.
8. The Company is a validly organized and existing
corporation under the laws of the State of Minnesota and is duly
qualified to do business, and is doing business, in that State.
9. The Company is a public utility corporation duly
authorized by its Articles of Incorporation to conduct the
business which it is now conducting as set forth in the
Prospectus and the Company holds valid and subsisting franchises,
licenses and permits authorizing it to carry on the utility
business in which it is engaged.
10. Each subsidiary of the Company is a validly
organized and existing corporation under the laws of the State of
its incorporation and is duly qualified to do business, and is
doing business, in such State and in each other State in which
the failure to qualify as a foreign corporation would be material
to the Company and its subsidiaries, taken as a whole.
11. The Company has good and sufficient title to all
the properties specifically described in the granting clauses of
the Mortgage as owned by it, subject only to excepted
encumbrances as defined in the Mortgage and other defects which
the Company has the right to cure by condemnation proceedings if
the property is necessary for utility purposes, and which, in my
opinion, do not impair the use of such properties by the Company,
except properties retired and properties previously released from
the lien of the Mortgage, and except that the Company's practice
is not to require examination of title, and I have not examined
title, to land upon which the Company has merely a transmission
or distribution line right of way or easement, reservoir lands,
lands or rights held for flowage, flooding or seepage purposes,
riparian rights, or other properties certified by the Company as
costing $25,000 or less, titles to which lands, rights or
properties could, if necessary for utility purposes, be perfected
or obtained by condemnation proceedings. The description of all
the properties so specifically described in the Mortgage is
adequate to constitute the Mortgage a lien thereon, and said
properties constitute all of the electric generating plants and
other materially important physical properties and substantially
all the other properties of the Company (other than those
expressly excepted). The Mortgage constitutes a valid, direct
and first mortgage lien upon the properties of the Company
specifically described in the granting clauses of the Mortgage or
upon the interest of the Company therein and upon the interest of
the Company in all other properties described in the Mortgage and
intended to be subject to the lien thereof, subject only to
excepted encumbrances and defects as above stated, and will
constitute a valid mortgage lien upon all permanent physical
properties and franchises (other than those expressly excepted)
acquired by the Company after the date of the [_________]
Supplemental Indenture upon such acquisition, subject, however,
to encumbrances and liens, if any, existing or placed thereon at
the date of acquisition thereof by the Company, except that in
the case of real estate or interests in real estate the title to
which is registered, the Mortgage becomes a lien thereon upon the
registration of said Mortgage against the appropriate
certificates of title.
12. Other than as stated in the Registration
Statements and the Prospectus there are no pending legal
proceedings to which the Company or any subsidiary is a party or
of which property of the Company or any subsidiary is the
subject, which depart from the ordinary routine litigation
incident to the kind of business conducted by the Company or any
such subsidiary, and which is material to the Company and its
subsidiaries, taken as a whole, and to the best of my knowledge
no such proceedings are known to be contemplated by governmental
authorities.
13. The portions of the answers to the items of the
Registration Statements and the portions of the information
contained in the Prospectus, which are stated therein to have
been made on my authority as General Counsel of the Company, have
been reviewed by me and, as to matters of law and legal
conclusions, are correct.
14. Neither the execution by the Company of the
[__________] Supplemental Indenture nor the issue and sale by the
Company of the Bonds as contemplated by the Agreement nor the
consummation by the Company of the other transactions
contemplated by the Agreement conflicts with, or results in a
breach of, the charter or by-laws of the Company or any
subsidiary or any agreement or instrument known to me to which
the Company or any subsidiary is a party or by which the Company
or any subsidiary is bound, any law or regulation or, so far as
is known to me, any order or regulation of any court,
governmental instrumentality or arbitrator, and which conflict or
breach is material to the Company and its subsidiaries, taken as
a whole.
15. To the best of my knowledge, the Company is not
currently in breach of, or in default under, any material written
agreement or instrument to which it is a party or by which it or
its property is bound or affected, and which breach or default is
material to the Company and its subsidiaries, taken as a whole.
In passing upon the forms of the Registration
Statements and the Prospectus, I necessarily assume the
correctness and completeness of the statements made or included
therein by the Company and take no responsibility therefor,
except insofar as such statements relate to me and as set forth
in the Prospectus under the headings "Experts" and "Legal
Opinions" and in paragraphs 6 and 13 above. In the course of the
preparation by the Company of the Registration Statements and the
Prospectus, I had conferences with certain of its officers and
representatives, with other counsel for the Company and with
Price Waterhouse LLP and Ernst & Young LLP, the independent
certified public accountants who examined certain of the
Company's financial statements incorporated by reference in the
Registration Statements. My examination of the Registration
Statements and the Prospectus, and my discussions in the
above-mentioned conferences did not disclose to me any
information which gives me reason to believe that, at the
Effective Date, the Registration Statements contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus at the time it was
filed electronically with the Commission pursuant to Rule 424,
and the Prospectus, as amended or supplemented at the date
hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. I do
not express any opinion or belief as to the financial statements,
statement of income or other financial or statistical data
included in the Registration Statements or in the Prospectus.
Very truly yours,
PHILIP R. HALVERSON
ANNEX A-3
FORM OF LETTER FROM
ERNST & YOUNG LLP
[________, 199_]
ADESA Corporation
and
[Insert Name(s)
and Address(es)
of Underwriter(s)]
Dear Sirs:
We have audited the consolidated balance sheet of ADESA
Corporation ("the Company") and subsidiaries as of December 31,
1995, and the consolidated statements of income, shareholders'
equity, and cash flows for the period from July 1, 1995 to
December 31, 1995, which are included (but not presented
separately) in the consolidated financial statements of Minnesota
Power & Light Company that are incorporated by reference in
Minnesota Power & Light Company's Annual Report (Form 10-K) for
the year ended December 31, 1995, filed with the Securities and
Exchange Commission and incorporated by reference in the Registration
Statement (No. 333-[______]) on Form S-3 filed by Minnesota Power &
Light Company under the Securities Act of 1933 ("the Act"); our
report with respect thereto is also incorporated by reference in
such Registration Statement in the form in which it became
effective, herein referred to as the "Registration Statement."
In connection with the Registration Statement:
1. We are independent auditors with respect to the
Company within the meaning of the Act and the
applicable published rules and regulations
thereunder.
2. We have not audited any financial statements of
the Company as of any date or for any period
subsequent to December 31, 1995. Therefore, we
are unable to express and do not express an
opinion on the financial position, results of
operations or cash flows as of any date or for any
period subsequent to December 31, 1995.
3. This letter is solely for the information of the
addressees and to assist the underwriters in
conducting and documenting their investigation of
the affairs of the Company in connection with the
offering of the securities covered by the
Registration Statement, and is not to be used,
circulated, quoted or otherwise referred to within
or without the underwriting group for any other
purpose, including, but not limited to, the
registration, purchase, or sale of securities, nor
is it to be filed with or referred to in whole or
in part in the Registration Statement or any other
document, except that reference may be made to it
in the underwriting agreement or any list of
closing documents pertaining to the offering of
the securities covered by the Registration
Statement.
Very truly yours,
Exhibit 4(d)
_________________________________________________________________
_________________________________________________________________
MINNESOTA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY)
AND
W.T. CUNNINGHAM
(SUCCESSOR TO RICHARD H. WEST, J.A. AUSTIN,
E.J. MCCABE, D.W. MAY AND J.A. VAUGHAN)
AS TRUSTEES UNDER MINNESOTA POWER &
LIGHT COMPANY'S MORTGAGE AND DEED OF
TRUST DATED AS OF SEPTEMBER 1, 1945
_____________________________
_____________ SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS, ______% SERIES DUE ______________
(____________ SERIES)
_____________________________
DATED AS OF ________________
_________________________________________________________________
_________________________________________________________________
_______________ SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of ______________, by and between
Minnesota Power & Light Company, a corporation of the State of
Minnesota, whose post office address is 30 West Superior Street,
Duluth, Minnesota 55802 (hereinafter sometimes called the
"Company"), and The Bank of New York (formerly Irving Trust
Company), a corporation of the State of New York, whose post
office address is 101 Barclay Street, New York, New York 10286
(hereinafter sometimes called the "Corporate Trustee"), and W. T.
Cunningham (successor to Richard H. West, J. A. Austin, E. J.
McCabe, D. W. May and J. A. Vaughan), whose post office address
is 3 Arlington Drive, Denville, New Jersey 07834 (said W. T.
Cunningham being hereinafter sometimes called the "Co-Trustee"
and the Corporate Trustee and the Co-Trustee being hereinafter
together sometimes called the "Trustees"), as Trustees under the
Mortgage and Deed of Trust, dated as of September 1, 1945,
between the Company and Irving Trust Company and Richard H. West,
as Trustees, securing bonds issued and to be issued as provided
therein (hereinafter sometimes called the "Mortgage"), reference
to which mortgage is hereby made, this indenture (hereinafter
sometimes called the "__________ Supplemental Indenture") being
supplemental thereto:
WHEREAS, the Mortgage was filed and recorded in various
official records in the State of Minnesota; and
WHEREAS, an instrument, dated as of October 16, 1957, was
executed and delivered under which J.A. Austin succeeded Richard
H. West as Co-Trustee under the Mortgage, and such instrument was
filed and recorded in various official records in the State of
Minnesota; and
WHEREAS, an instrument, dated as of April 4, 1967, was
executed and delivered under which E. J. McCabe in turn succeeded
J.A. Austin as Co-Trustee under the Mortgage, and such instrument
was filed and recorded in various official records in the State
of Minnesota; and
WHEREAS, under the Sixth Supplemental Indenture, dated as of
August 1, 1975, to which reference is hereinafter made, D.W. May
in turn succeeded E. J. McCabe as Co-Trustee under the Mortgage;
and
WHEREAS, an instrument, dated as of June 25, 1984, was
executed and delivered under which J. A. Vaughan in turn
succeeded D.W. May as Co-Trustee under the Mortgage, and such
instrument was filed and recorded in various official records in
the State of Minnesota; and
WHEREAS, an instrument, dated as of July 27, 1988, was
executed and delivered under which W. T. Cunningham in turn
succeeded J.A. Vaughan as Co-Trustee under the Mortgage, and such
instrument was filed and recorded in various official records in
the State of Minnesota; and
WHEREAS, by the Mortgage the Company covenanted, among other
things, that it would execute and deliver such supplemental
indenture or indentures and such further instruments and do such
further acts as might be necessary or proper to carry out more
effectually the purposes of the Mortgage and to make subject to
the lien of the Mortgage any property thereafter acquired and
intended to be subject to the lien thereof; and
WHEREAS, for said purposes, among others, the Company
executed and delivered the following indentures supplemental to
the Mortgage:
DESIGNATION DATED AS OF
------------ -----------
First Supplemental Indenture March 1, 1949
Second Supplemental Indenture July 1, 1951
Third Supplemental Indenture March 1, 1957
Fourth Supplemental Indenture January 1, 1968
Fifth Supplemental Indenture April 1, 1971
Sixth Supplemental Indenture August 1, 1975
Seventh Supplemental Indenture September 1, 1976
Eighth Supplemental Indenture September 1, 1977
Ninth Supplemental Indenture April 1, 1978
Tenth Supplemental Indenture August 1, 1978
Eleventh Supplemental Indenture December 1, 1982
Twelfth Supplemental Indenture April 1, 1987
Thirteenth Supplemental Indenture March 1, 1992
Fourteenth Supplemental Indenture June 1, 1992
Fifteenth Supplemental Indenture July 1, 1992
Sixteenth Supplemental Indenture July 1, 1992
Seventeenth Supplemental Indenture February 1, 1993
which supplemental indentures were filed and recorded in various
official records in the State of Minnesota; and
Whereas, for said purposes, among others, the Company also
executed and delivered a _____________ Supplemental
Indenture, dated as of ______________, which was filed and
recorded in various official records in the State of Minnesota as
follows:
Here will be inserted additional executed Supplemental
Indentures.
Here will be inserted the most recent executed
Supplemental Indenture(s).
Registrar
County in Recorder of Titles
Minnesota Date Doc. No. Date Doc. No.
_________ ____ ________ ____ ________
Aitkin
Benton
Carlton
Cass
Crow Wing
Hubbard
Itasca
Koochiching
Lake
Morrison
Otter Tail
Pine
St. Louis
Stearns
Todd
Wadena
Office of Secretary of State of Minnesota; recorded ____________
as Document No. _________; and
Whereas, the Company has heretofore issued, in accordance
with the provisions of the Mortgage, as heretofore supplemented,
the following series of First Mortgage Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
______ _________ ___________
3-1/8% Series due 1975 $26,000,000 None
3-1/8% Series due 1979 4,000,000 None
3-5/8% Series due 1981 10,000,000 None
4-3/4% Series due 1987 12,000,000 None
6-1/2% Series due 1998 18,000,000 $18,000,000
8-1/8% Series due 2001 23,000,000 None
10-1/2% Series due 2005 35,000,000 None
8.70% Series due 2006 35,000,000 None
8.35% Series due 2007 50,000,000 None
9-1/4% Series due 2008 50,000,000 None
Pollution Control Series A 111,000,000 None
Industrial Development Series A 2,500,000 None
Industrial Development Series B 1,800,000 None
Industrial Development Series C 1,150,000 None
Principal Principal
Amount Amount
Series Issued Outstanding
______ _________ ___________
Pollution Control Series B 13,500,000 None
Pollution Control Series C 2,000,000 None
Pollution Control Series D 3,600,000 3,600,000
7-3/4% Series due 1994 55,000,000 None
7-3/8% Series due March 1, 1997 60,000,000 60,000,000
7-3/4% Series due June 1, 2007 55,000,000 55,000,000
7-1/2% Series due August 1, 2007 35,000,000 35,000,000
Pollution Control Series E 111,000,000 111,000,000
7% Series due March 1, 2008 50,000,000 50,000,000
6-1/4% Series due July 1, 2003 25,000,000 25,000,000
which bonds are also hereinafter sometimes called bonds of the
First through ___________ Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of
each series of bonds (other than the First Series) issued
thereunder and of coupons to be attached to coupon bonds of such
series shall be established by Resolution of the Board of
Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the
descriptive title of the bonds and various other terms thereof,
and may also contain such provisions not inconsistent with the
provisions of the Mortgage as the Board of Directors may, in its
discretion, cause to be inserted therein expressing or referring
to the terms and conditions upon which such bonds are to be
issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly
reserved to or in any way conferred upon the Company by any
provision of the Mortgage, whether such power, privilege or right
is in any way restricted or is unrestricted, may (to the extent
permitted by law) be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to
additional restriction if already restricted, and the Company may
enter into any further covenants, limitations or restrictions for
the benefit of any one or more series of bonds issued thereunder,
or the Company may cure any ambiguity contained therein, or in
any supplemental indenture, or may establish the terms and
provisions of any series of bonds (other than said First Series)
by an instrument in writing executed and acknowledged by the
Company in such manner as would be necessary to entitle a
conveyance of real estate to record in all of the states in which
any property at the time subject to the lien of the Mortgage
shall be situated; and
[FN]
Here will be inserted additional outstanding series.
Here will be inserted the most recent outstanding
series.
WHEREAS, the Company now desires to create ____ new series
of bonds and (pursuant to the provisions of Section 120 of the
Mortgage) to add to its covenants and agreements contained in the
Mortgage, as heretofore supplemented, certain other covenants and
agreements to be observed by it and to alter and amend in certain
respects the covenants and provisions contained in the Mortgage,
as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this
___________ Supplemental Indenture, and the terms of the bonds of
the ___________ Series, hereinafter referred to, have been duly
authorized by the Board of Directors of the Company by
appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of
One Dollar to it duly paid by the Trustees at or before the
ensealing and delivery of these presents, the receipt whereof is
hereby acknowledged, and in further evidence of assurance of the
estate, title and rights of the Trustees and in order further to
secure the payment of both the principal of and interest and
premium, if any, on the bonds from time to time issued under the
Mortgage, as heretofore supplemented, according to their tenor
and effect and the performance of all the provisions of the
Mortgage (including any instruments supplemental thereto and any
modification made as in the Mortgage provided) and of said bonds,
hereby grants, bargains, sells, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and confirms (subject,
however, to Excepted Encumbrances) unto The Bank of New York and
W. T. Cunningham, as Trustees under the Mortgage, and to their
successor or successors in said trust, and to said Trustees and
their successors and assigns forever, all property, real,
personal and mixed, of the kind or nature specifically mentioned
in the Mortgage, as heretofore supplemented, or of any other kind
or nature acquired by the Company after the date of the execution
and delivery of the Mortgage, as heretofore supplemented (except
any herein or in the Mortgage, as heretofore supplemented,
expressly excepted), now owned or, subject to the provisions of
subsection (I) of Section 87 of the Mortgage, hereafter acquired
by the Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) and wheresoever
situated, including (without in anywise limiting or impairing by
the enumeration of the same the scope and intent of the foregoing
or of any general description contained in this _____________
Supplemental Indenture) all lands, power sites, flowage rights,
water rights, water locations, water appropriations, ditches,
flumes, reservoirs, reservoir sites, canals, raceways, dams, dam
sites, aqueducts, and all other rights or means for
appropriating, conveying, storing and supplying water; all rights
of way and roads; all plants for the generation of electricity by
steam, water and/or other power; all power houses, gas plants,
street lighting systems, standards and other equipment incidental
thereto, telephone, radio and television systems, air-
conditioning systems and equipment incidental thereto, water
works, water systems, steam heat and hot water plants,
substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, electric, gas
and other machines, regulators, meters, transformers, generators,
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, wires, cables, tools, implements, apparatus,
furniture and chattels; all municipal and other franchises,
consents or permits; all lines for the transmission and
distribution of electric current, gas, steam heat or water for
any purpose including towers, poles, wires, cables, pipes,
conduits, ducts and all apparatus for use in connection
therewith; all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights of way and
other rights in or relating to real estate or the occupancy of
the same and (except as herein or in the Mortgage, as heretofore
supplemented, expressly excepted) all the right, title and
interest of the Company in and to all other property of any kind
or nature appertaining to and/or used and/or occupied and/or
enjoyed in connection with any property hereinbefore or in the
Mortgage, as heretofore supplemented, described.
TOGETHER WITH all and singular the tenements, hereditaments,
prescriptions, servitudes and appurtenances belonging or in
anywise appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 57 of the
Mortgage) the tolls, rents, revenues, issues, earnings, income,
product and profits thereof, and all the estate, right, title and
interest and claim whatsoever, at law as well as in equity, which
the Company now has or may hereafter acquire in and to the
aforesaid property and franchises and every part and parcel
thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of subsection (I) of Section 87 of the Mortgage, all
the property, rights, and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or
in the Mortgage, as heretofore supplemented, expressly excepted,
shall be and are as fully granted and conveyed hereby and by the
Mortgage and as fully embraced within the lien hereof and the
lien of the Mortgage as if such property, rights and franchises
were now owned by the Company and were specifically described
herein or in the Mortgage and conveyed hereby or thereby.
PROVIDED that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of this _____________
Supplemental Indenture and from the lien and operation of the
Mortgage, namely: (1) cash, shares of stock, bonds, notes and
other obligations and other securities not hereafter specifically
pledged, paid, deposited, delivered or held under the Mortgage or
covenanted so to be; (2) merchandise, equipment, apparatus,
materials or supplies held for the purpose of sale or other
disposition in the usual course of business; fuel, oil and
similar materials and supplies consumable in the operation of any
of the properties of the Company; all aircraft, rolling stock,
trolley coaches, buses, motor coaches, automobiles and other
vehicles and materials and supplies held for the purpose of
repairing or replacing (in whole or part) any of the same; all
timber, minerals, mineral rights and royalties; (3) bills, notes
and accounts receivable, judgments, demands and choses in action,
and all contracts, leases and operating agreements not
specifically pledged under the Mortgage or covenanted so to be;
the Company's contractual rights or other interest in or with
respect to tires not owned by the Company; (4) the last day of
the term of any lease or leasehold which may hereafter become
subject to the lien of the Mortgage; (5) electric energy, gas,
steam, ice, and other materials or products generated,
manufactured, produced or purchased by the Company for sale,
distribution or use in the ordinary course of its business; and
(6) the Company's franchise to be a corporation; provided,
however, that the property and rights expressly excepted from the
lien and operation of this _____________ Supplemental Indenture
and from the lien and operation of the Mortgage in the above
subdivisions (2) and (3) shall (to the extent permitted by law)
cease to be so excepted in the event and as of the date that
either or both of the Trustees or a receiver or trustee shall
enter upon and take possession of the Mortgaged and Pledged
Property in the manner provided in Article XIII of the Mortgage
by reason of the occurrence of a Default as defined in Section 65
thereof.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed by the
Company as aforesaid, or intended so to be, unto the Trustees and
their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Mortgage, as
supplemented, this ___________ Supplemental Indenture being
supplemental thereto.
AND IT SI HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Mortgage, as heretofore supplemented, shall affect and
apply to the property hereinbefore described and conveyed and to
the estate, rights, obligations and duties of the Company and
Trustees and the beneficiaries of the trust with respect to said
property, and to the Trustees and their successors in the trust
in the same manner and with the same effect as if said property
had been owned by the Company at the time of the execution of the
Mortgage, and had been specifically and at length described in
and conveyed to said Trustees by the Mortgage as a part of the
property therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustees and their successors in said trust under the Mortgage as
follows:
ARTICLE I
____________ SERIES OF BONDS
Section 1. There shall be a series of bonds designated
"_____% Series due ______________" (herein sometimes referred to
as the "__________ Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the __________ Series shall be dated as in Section 10 of
the Mortgage provided, mature on _____________, be issued as
fully registered bonds in denominations of One Thousand Dollars
and, at the option of the Company, in any multiple or multiples
of One Thousand Dollars (the exercise of such option to be
evidenced by the execution and delivery thereof) and bear
interest [at the rate of _____% per annum, payable semi-annually
on ________ and ___________ of each year], commencing
_______________, the principal of and interest on each said bond
to be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts.
(I) Bonds of the ___________ Series shall not be
redeemable prior to _________.
(II) Bonds of the ___________ Series shall be
redeemable on and after ______________, in whole at any time, or
in part from time to time, prior to maturity, upon notice as
provided in Section 52 of the Mortgage mailed at least 30 days
prior to the date fixed for redemption, at 100% of the principal
amount of the bonds to be redeemed together, in each case, with
accrued interest to the date fixed for redemption.
(III) At the option of the registered owner, any bonds
of the __________ Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, together with a written
instrument of transfer wherever required by the Company duly
executed by the registered owner or by his duly authorized
attorney, shall (subject to the provisions of Section 12 of the
Mortgage) be exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
Bonds of the __________ Series shall be transferable
(subject to the provisions of Section 12 of the Mortgage) at the
office or agency of the Company in the Borough of Manhattan, The
City of New York.
Upon any exchange or transfer of bonds of the ___________
Series, the Company may make a charge therefor sufficient to
reimburse it for any tax or taxes or other governmental charge,
as provided in Section 12 of the Mortgage, but the Company hereby
waives any right to make a charge in addition thereto for any
exchange or transfer of bonds of the __________ Series.
[FN]
Bracketed material to be changed if bonds of the Series
to which this Supplemental Indenture shall relate shall
bear interest at a rate which may be changed during the
life of such bonds or if such bonds shall bear interest
payable other than semi-annually.
These paragraphs will be omitted or changed if the
bonds of the series to which this Supplemental
Indenture shall relate shall not be subject to
redemption or shall be subject to redemption on terms
different from those described above.
Upon the delivery of this ____________ Supplemental
Indenture and upon compliance with the applicable provisions of
the Mortgage, there shall be an initial issue of bonds of the
__________ Series for the aggregate principal amount of
$__________.
ARTICLE II
DIVIDEND COVENANT
Section 2. The Company covenants and agrees that the
provisions of subdivision (III) of Section 39 of the Mortgage,
which are to remain in effect so long as any of the bonds of the
First Series shall remain Outstanding, shall remain in full force
and effect so long as any bonds of the First through __________
Series shall remain Outstanding.
[ Amendment to the Mortgage
Meetings and Consents of Bondholders
Section __. Pursuant to the reservation of right in Section
3 of the Fifth Supplemental Indenture dated as of April 1, 1971
and there being no Outstanding bonds of any series created prior
to the Sixth Series, the Company hereby amends the Mortgage, as
supplemented, by substituting for Article XIX (relating to
Meetings and Consents of Bondholders) a new Article XIX to read
as set forth in Section 3 of such Fifth Supplemental
Indenture.]
[ Amendment to the Mortgage
Nuclear Fuel
Section __. Pursuant to the reservation of right in Section
2 of the Fifth Supplemental Indenture dated as of April 1, 1971
and there being no Outstanding bonds of any series created prior
to the Sixth Series, the Company hereby amends the Mortgage, as
supplemented, as set forth in paragraphs (A), (B) and (C) of
Section 2 of such Fifth Supplemental Indenture (relating to
Nuclear Fuel).]
[FN]
The Company may insert the bracketed language in any
one Supplemental Indenture executed after all bonds of
the Fifth Series have been retired.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3. Section 126 of the Mortgage, as heretofore
amended, is hereby further amended by adding the words "and
___________," after the words "and _________".
Section 4. Subject to the amendments provided for in this
_____________ Supplemental Indenture, the terms defined in the
Mortgage, as heretofore supplemented, shall, for all purposes of
this _____________ Supplemental Indenture, have the meanings
specified in the Mortgage, as heretofore supplemented.
Section 5. The Trustees hereby accept the trusts herein
declared, provided, created or supplemented and agree to perform
the same upon the terms and conditions herein and in the Mortgage
set forth and upon the following terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this _____________ Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article XVII of the Mortgage shall apply
to and form part of this _____________ Supplemental Indenture
with the same force and effect as if the same were herein set
forth in full with such omissions, variations and insertions, if
any, as may be appropriate to make the same conform to the
provisions of this _____________ Supplemental Indenture.
Section 6. Whenever in this _____________ Supplemental
Indenture any party hereto is named or referred to, this shall,
subject to the provisions of Articles XVI and XVII of the
Mortgage, as heretofore supplemented, be deemed to include the
successors or assigns of such party, and all the covenants and
agreements in this _____________ Supplemental Indenture contained
by or on behalf of the Company, or by or on behalf of the
Trustees shall, subject as aforesaid, bind and inure to the
benefit of the respective successors and assigns of such party
whether so expressed or not.
Section 7. Nothing in this _____________ Supplemental
Indenture, expressed or implied, is intended, or shall be
construed, to confer upon, or give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right,
remedy, or claim under or by reason of this _____________
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this _____________
Supplemental Indenture contained by and on behalf of the Company
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and of the coupons
Outstanding under the Mortgage.
[FN]
Here will be inserted the maturity date of the most
recent series of bonds.
Here will be inserted the maturity date of the series
of bonds issued immediately before the most recent
series of bonds.
Section 8. This _____________ Supplemental Indenture shall
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
Section 9. The Company, the mortgagor named herein, by its
execution hereof acknowledges receipt of a full, true and
complete copy of this _____________ Supplemental Indenture.
IN WITNESS WHEREOF, Minnesota Power & Light Company has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its President or one of its
Vice Presidents, and its corporate seal to be attested by its
Secretary or one of its Assistant Secretaries for and in its
behalf, and The Bank of New York has caused its corporate name
to be hereunto affixed, and this instrument to be signed and
sealed by one of its Vice Presidents or one of its Assistant Vice
Presidents and its corporate seal to be attested by one of its
Assistant Treasurers, and W. T. Cunningham has hereunto set his
hand and affixed his seal, all in The City of New York, as of the
day and year first above written.
Minnesota Power & Light Company
By______________________________
[Name]
[Title]
Attest:
_______________________
[Name]
[Title]
Executed, sealed and delivered by Minnesota Power
& Light Company in the presence of:
_______________________________
_______________________________
The Bank of New York
as Trustee
By______________________
[Name]
[Title]
Attest:
_______________________
[Name]
[Title]
____________________________
W.T. Cunningham
Executed, sealed and delivered by The Bank of New
York and W. T. Cunningham in the presence of:
____________________________
____________________
____________________
State of Minnesota )
) ss.:
County of St. Louis )
On this _____ day of ________________, before me, a Notary
Public within and for said County, personally appeared
____________________ and ___________________, to me personally
known, who, being each by me duly sworn, did say that they are
respectively the ______________________ and the
_____________________________ of Minnesota Power & Light Company
of the State of Minnesota, the corporation named in the foregoing
instrument; that the seal affixed to the foregoing instrument is
the corporate seal of said corporation; that said instrument was
signed and sealed in behalf of said corporation by authority of
its Board of Directors; and said ____________________ and
___________________ acknowledged said instrument to be the free
act and deed of said corporation.
Personally came before me on this _____ day of
_______________, ____________________, to me known to be the
________________________, and ____________________, to me known
to be the _______________________, of the above named Minnesota
Power & Light Company, the corporation described in and which
executed the foregoing instrument, and to me personally known to
be the persons who as such officers executed the foregoing
instrument in the name and behalf of said corporation, who, being
by me duly sworn did depose and say and acknowledge that they are
respectively the _____________________ and the
___________________ of said corporation; that the seal affixed to
said instrument is the corporate seal of said corporation; and
that they signed, sealed and delivered said instrument in the
name and on behalf of said corporation by authority of its Board
of Directors and stockholders, and said ____________________ and
___________________ then and there acknowledged said instrument
to be the free act and deed of said corporation and that such
corporation executed the same.
On the _____ day of _______________, before me personally
came ____________________ and ___________________, to me known,
who, being by me duly sworn, did depose and say that they
respectively reside at _______________________________________,
and ________________________________________; that they are
respectively the ____________________ and the
_______________________ of Minnesota Power & Light Company, one
of the corporations described in and which executed the above
instrument; that they know the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of said
corporation, and that they signed their names thereto by like
order.
Given under my hand and notarial seal this _____ day of
______________.
__________________________________
Notary Public
State of New York )
) ss:
County of New York )
On this _____ day of ______________, before me, a Notary
Public within and for said County, personally appeared
____________________ and ___________________, to me personally
known, who, being each by me duly sworn, did say that they are
respectively a _______________ and an ________________ of The
Bank of New York of the State of New York, the corporation named
in the foregoing instrument; that the seal affixed to the
foregoing instrument is the corporate seal of said corporation;
that said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors; and said
____________________ and ___________________ acknowledged said
instrument to be the free act and deed of said corporation.
Personally came before me on this _____ day of
______________, ____________________, to me known to be a
__________________, and ____________________, known to me to be
an __________________, of the above named The Bank of New York,
the corporation described in and which executed the foregoing
instrument, and to me personally known to be the persons who as
such officers executed the foregoing instrument in the name and
behalf of said corporation, who, being by me duly sworn did
depose and say and acknowledge that they are respectively a
_________________ and an ________________ of said corporation;
that the seal affixed to said instrument is the corporate seal of
said corporation; and that they signed, sealed and delivered said
instrument in the name and on behalf of said corporation by
authority of its Board of Directors, and said
____________________ and ___________________ then and there
acknowledged said instrument to be the free act and deed of said
corporation and that such corporation executed the same.
On the _____ day of _______________, before me personally
came ____________________ and ___________________, to me known,
who, being by me duly sworn, did depose and say that they
respectively reside at ________________________________, and
_______________________________________; that they are
respectively a _________________ and an ____________________ of
The Bank of New York, one of the corporations described in and
which executed the above instrument; that they know the seal of
said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that they signed their
names thereto by like order.
Given under my hand and notarial seal this _____ day of
________________.
_____________________________________
Notary Public, State of New York
State of New York )
) ss:
County of New York )
On this _____ day of ___________________, before me
personally appeared W.T. Cunningham, to me known to be the person
described in and who executed the foregoing instrument, and
acknowledged that he executed the same as his free act and deed.
Personally came before me this _____ day of ______________,
the above named W.T. Cunningham, to me known to be the person who
executed the foregoing instrument, and acknowledged the same.
On the _____ day of ______________, before me personally
came W.T. Cunningham, to me known to be the person described in
and who executed the foregoing instrument, and acknowledged that
he executed the same.
Given under my hand and notarial seal this _____ day of
________________.
____________________________________
Notary Public, State of New York
Exhibit 5(a)
MINNESOTA POWER & LIGHT COMPANY
30 West Superior Street
Duluth, Minnesota 55802
Philip R. Halverson - Vice President
General Counsel and Corporate Secretary
January 28, 1997
Minnesota Power & Light Company
30 West Superior Street
Duluth, MN 55802
Dear Sirs:
Referring to the proposed issuance and sale by Minnesota
Power & Light Company of not to exceed $80,000,000 in principal
amount of one or more proposed new series of the Company's
First Mortgage Bonds (Bonds), as contemplated in the
registration statement to be filed by the Company on or about
the date hereof with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, I am of the
opinion that:
1. With respect to each series of Bonds which are to be
issued at any one time (Offered Bonds), all action necessary to
make the Offered Bonds valid, legal and binding obligations of
the Company will have been taken when:
(a) At a meeting or meetings of the Company's Board of
Directors or the Executive Committee of the Board of
Directors favorable action shall have been taken to
approve and authorize the issuance and sale of the Offered
Bonds, an appropriate Supplemental Indenture to the
Company's presently existing Mortgage and Deed of Trust,
as supplemented, in substantially its final form and any
other final action necessary to the consummation of the
proposed issuance and sale of the Offered Bonds;
(b) The Minnesota Public Utilities Commission shall have
issued an order or orders authorizing the issuance and
sale of the Bonds;
(c) The aforementioned Supplemental Indenture shall have
been duly executed and delivered by the parties thereto;
and
(d) The Offered Bonds shall have been issued and
delivered for the consideration contemplated in the
registration statement and any Prospectus Supplement
relating to the Offered Bonds and in accordance with the
provisions of the Company's Mortgage and Deed of Trust,
dated as of September 1, 1945, with Irving Trust Company
(now The Bank of New York) and Richard H. West (W.T.
Cunningham, successor), as Trustees, as heretofore
supplemented and to be further supplemented by the
aforementioned Supplemental Indenture.
2. The Company is a corporation validly organized and
existing under the laws of the State of Minnesota.
I hereby consent to the use of my name in such
registration statement and to the use of this opinion as an
exhibit thereto.
Sincerely,
/s/ Philip R. Halverson
Philip R. Halverson
Exhibit 5(b)
REID & PRIEST LLP
40 West 57th Street
New York, N.Y. 10019-4097
Telephone 212 603-2000
Fax 212 603-2001
New York, New York
January 28, 1997
Minnesota Power & Light Company
30 West Superior Street
Duluth, Minnesota 55802
Dear Sirs:
Referring to the proposed issuance and sale by you of
not to exceed $80,000,000 in principal amount of one or more
proposed new series of the Company's First Mortgage Bonds
(Bonds), as contemplated in the registration statement to be
filed by you on or about the date hereof with the Securities and
Exchange Commission under the Securities Act of 1933, as amended,
we are of the opinion that:
1. With respect to each series of Bonds which are to
be issued at any one time (Offered Bonds), all action necessary
to make the Offered Bonds valid, legal and binding obligations of
the Company will have been taken when:
(a) At a meeting or meetings of the Company's Board of
Directors or the Executive Committee of the Board of Directors
favorable action shall have been taken to approve and authorize
the issuance and sale of the Offered Bonds, an appropriate
Supplemental Indenture to the Company's presently existing
Mortgage and Deed of Trust, as supplemented, in substantially its
final form and any other final action necessary to the
consummation of the proposed issuance and sale of the Offered
Bonds;
(b) The Minnesota Public Utilities Commission shall
have issued an order or orders authorizing the issuance and sale
of the Bonds;
(c) The aforementioned Supplemental Indenture shall
have been duly executed and delivered by the parties thereto; and
(d) The Offered Bonds shall have been issued and
delivered for the consideration contemplated in the registration
statement and any Prospectus Supplement relating to the Offered
Bonds and in accordance with the provisions of the Company's
Mortgage and Deed of Trust, dated as of September 1, 1945, with
Irving Trust Company (now The Bank of New York) and Richard H.
West (W.T. Cunningham, successor), as Trustees, as heretofore
supplemented and to be further supplemented by the aforementioned
Supplemental Indenture.
2. The Company is a corporation validly organized and
existing under the laws of the State of Minnesota.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of the State of Minnesota.
As to all matters of Minnesota law, we have relied with your
consent upon an opinion of even date herewith addressed to you by
Philip R. Halverson, Esq., Vice President, General Counsel and
Secretary to the Company.
We hereby consent to the use of our name in such
registration statement, and to the use of this opinion as an
exhibit thereto.
Very truly yours,
/s/ REID & PRIEST LLP
REID & PRIEST LLP
Exhibit 12
Minnesota Power & Light Company
Computation of Ratios of Earnings to Fixed Charges and
Supplemental Ratios of Earnings to Fixed Charges
Year Ended December 31,
-----------------------------------
1991 1992 1993
-------- -------- --------
(In thousands except ratios)
Income from continuing operations
per consolidated statement
of income $ 70,854 $ 67,821 $ 64,374
Add (deduct)
Current income tax expense 16,371 29,147 29,277
Deferred income tax expense
(benefit) 9,734 (1,113) 1,084
Deferred investment tax credits (1,615) (1,568) (2,035)
Undistributed income from less
than 50% owned equity
investments (4,941) (5,733) (6,009)
Minority interest (129) 2,684 (83)
-------- -------- --------
90,274 91,238 86,608
-------- -------- --------
Fixed charges
Interest on long-term debt 44,516 44,008 44,647
Capitalized interest - 422 3,010
Other interest charges - net 8,008 6,455 1,501
Interest component of all
rentals 5,695 5,728 5,729
Distributions on redeemable
preferred securities of - - -
subsidiary -------- -------- --------
Total fixed charges 58,219 56,613 54,887
-------- -------- --------
Earnings before income taxes and
fixed charges (excluding
capitalized $148,493 $147,429 $138,485
interest) ======== ======== ========
2.55 2.60 2.52
Ratio of earnings to fixed charges ======== ======== ========
Earnings before income taxes and
fixed charges (excluding
capitalized interest) $148,493 $147,429 $138,485
Supplemental charges 16,846 16,017 15,149
-------- -------- --------
Earnings before income taxes and
fixed and supplemental charges
(excluding capitalized $165,339 $163,446 $153,634
interest) ======== ======== ========
Total fixed charges $ 58,219 $ 56,613 $ 54,887
Supplemental charges 16,846 16,017 15,149
-------- -------- --------
Fixed and supplemental charges $ 75,065 $ 72,630 $ 70,036
======== ======== ========
Supplemental ratio of earnings to 2.20 2.25 2.19
fixed charges (1) ======== ======== ========
Nine Months
Year Ended December 31, Ended
---------------------- September 30,
1994 1995 1996
-------- -------- -------------
(In thousands
except ratios)
Income from continuing
operations per consolidated
statement of income $ 59,465 $ 61,857 $ 50,648
Add (deduct)
Current income tax expense 24,116 13,356 24,441
Deferred income tax expense
(benefit) (981) (11,336) (5,161)
Deferred investment tax
credits (2,478) (865) (1,503)
Undistributed income from
less than 50% owned
equity investments (7,547) (9,124) (8,884)
Minority interest (879) 260 2,076
-------- -------- --------
71,696 54,148 61,617
-------- -------- --------
Fixed charges
Interest on long-term debt 48,137 45,713 38,276
Capitalized interest - 1,395 1,244
Other interest charges - net 7,382 7,934 6,673
Interest component of all
rentals 5,737 3,670 1,746
Distributions on redeemable
preferred securities of - - 3,220
subsidiary -------- -------- --------
Total fixed charges 61,256 58,712 51,159
-------- -------- --------
Earnings before income taxes
and fixed charges (excluding $132,952 $111,465 $111,532
capitalized interest) ======== ======== =========
Ratio of earnings to fixed 2.17 1.90 2.18
charges ======== ========= ========
Earnings before income taxes
and fixed charges (excluding
capitalized interest) $132,952 $111,465 $111,532
Supplemental charges 14,370 13,519 9,828
-------- -------- --------
Earnings before income taxes
and fixed and supplemental
charges (excluding $147,322 $124,984 $121,360
capitalized interest) ======== ======== ========
Total fixed charges $ 61,256 $ 58,712 $ 51,159
Supplemental charges 14,370 13,519 9,828
-------- -------- --------
Fixed and supplemental $ 75,626 $ 72,231 $ 60,987
charges ======== ======== ========
Supplemental ratio of earnings 1.95 1.73 1.99
to fixed charges (1) ======== ======== ========
--------------------
(1) The supplemental ratio of earnings to fixed charges includes the
Company's obligation under a contract with Square Butte Electric
Cooperative ("Square Butte") which extends through 2007, pursuant
to which the Company is purchasing 71 percent of the output of a
generating unit capable of generating up to 470 megawatts. The
Company is obligated to pay Square Butte all of Square Butte's
leasing, operating and debt service costs (less any amounts
collected from the sale of power or energy to others) that shall
not have been paid by Square Butte when due. See Note 12 to the
Company's 1995 Consolidated Financial Statements incorporated by
reference in the Company's 1995 Form 10-K.
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on
Form S-3 of our report dated January 22, 1996, which appears on
page 21 of the 1995 Annual Report to Shareholders of Minnesota
Power & Light Company, which is incorporated by reference in
Minnesota Power & Light Company's Annual Report on Form 10-K for
the year ended December 31, 1995. We also consent to the
incorporation by reference of our report on the Financial
Statement Schedule, which appears on page 37 of such Annual
Report on Form 10-K. We also consent to the reference to us
under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Minneapolis, Minnesota
January 27, 1997
EXHIBIT 23(b)
ERNST & YOUNG LLP One Indiana Square Phone: 317 681-7000
Suite 3400 Fax: 317 681-7216
Indianapolis, Indiana 46204-2094
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-3 No. 333- )
and related Prospectus of Minnesota Power & Light Company for
the registration of $75,000,000 in principal amount of its first
mortgage bonds and to the incorporation by reference therein of
our report dated January 17, 1996 (except Note 13, as to which
the date is January 19, 1996), with respect to the consolidated
financial statements of ADESA Corporation for the six months
ended December 31, 1995 (not presented separately therein) which
are included in the consolidated financial statements of
Minnesota Power & Light Company that are incorporated by
reference in its Annual Report (Form 10-K) for the year ended
December 31, 1995, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
January 29, 1997
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) ____________
_________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
_________________
MINNESOTA POWER & LIGHT COMPANY
(Exact name of obligor as specified in its charter)
Minnesota 41-0418150
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802
(Address of principal executive offices) (Zip code)
_________________
FIRST MORTGAGE BONDS
(Title of the indenture securities)
------------------------
*Specific title(s) to be determined in connection with sale(s) of First
Mortgage Bonds.
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.
Superintendent of Banks of the 2 Rector Street, New York, N.Y.
State of New York 10006 and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
Federal Deposit Insurance Corporation 10045
550 17th Street, N.W.,
Washington, D.C. 20429
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act")
and Rule 24 of the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-------------------------------------
Pursuant to General Instruction B, the Trustee has responded only to Items
1, 2 and 16 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee
is a trustee.
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a responsive
answer to Item 2, the answer to said Item is based on incomplete
information.
Item 2 may, however, be considered as correct unless amended by
an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the State
of New York, has duly caused this statement of eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized, all in The City
of New York, and State of New York, on the 23rd day of January, 1997.
THE BANK OF NEW YORK
By: /s/ REMO J. REALE
-------------------------------------
Remo J. Reale
Assistant Vice President
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business September 30, 1996, published in
accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
------ -------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin . . . . . . . . . . . . . $4,404,522
Interest-bearing balances . . . . . . . . . . . . 732,833
Securities:
Held-to-maturity securities . . . . . . . . . . . 789,964
Available-for-sale securities . . . . . . . . . . 2,005,509
Federal funds sold in domestic
offices of the bank:
Federal funds sold . . . . . . . . . . . . . . . 3,364,838
Loans and lease financing
receivables:
Loans and leases, net of unearned
income . . . . . . . . . . . . . 28,728,602
LESS: Allowance for loan and
lease losses . . . . . . . . . . 584,525
LESS: Allocated transfer risk
reserve . . . . . . . . . . . . . 429
Loans and leases, net of unearned
income, allowance, and reserve . . . . . . . . 28,143,648
Assets held in trading accounts . . . . . . . . . . 1,004,242
Premises and fixed assets (including
capitalized leases) . . . . . . . . . . . . . . . 605,668
Other real estate owned . . . . . . . . . . . . . . 41,238
Investments in unconsolidated subsid-
iaries and associated companies . . . . . . . . . 205,031
Customers' liability to this bank on
acceptances outstanding . . . . . . . . . . . . . 949,154
Intangible assets . . . . . . . . . . . . . . . . . 490,524
1,305,839
Other assets . . . . . . . . . . . . . . . . . . . -----------
Total assets . . . . . . . . . . . . . . . . . . . $44,043,010
===========
(Page 2 of 3)
LIABILITIES
-----------
Deposits:
In domestic offices . . . . . . . . . . . . . . . $20,441,318
Noninterest-bearing . . . . . . . . 8,158,472
Interest-bearing . . . . . . . . . 12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs . . . . . . . . 11,710,903
Noninterest-bearing . . . . . . . . 46,182
Interest-bearing . . . . . . . . . 11,664,721
Federal funds purchased in domestic
offices of the bank:
Federal funds purchased . . . . . . . . . . . . . 1,565,288
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . 293,186
Trading liabilities . . . . . . . . . . . . . . . . 826,856
Other borrowed money:
With original maturity of one year or less . . . 2,103,443
With original maturity of more than one year . . 20,766
Bank's liability on acceptances
executed and outstanding . . . . . . . . . . . . 951,116
Subordinated notes and debentures . . . . . . . . . 1,020,400
1,522,884
Other liabilities . . . . . . . . . . . . . . . . . ----------
40,456,160
Total liabilities . . . . . . . . . . . . . . . . . ----------
EQUITY CAPITAL
--------------
Common stock . . . . . . . . . . . . . . . . . . . 942,284
Surplus . . . . . . . . . . . . . . . . . . . . . . 525,666
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . . 2,129,376
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . ( 2,073)
Cumulative foreign currency ( 8,403)
translation adjustments . . . . . . . . . . . . . -----------
3,586,850
Total equity capital . . . . . . . . . . . . . . . -----------
$44,043,010
Total liabilities and equity capital . . . . . . . ===========
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the
best of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM T-2
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF AN INDIVIDUAL
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
_________________
W.T. CUNNINGHAM
(Name of Trustee)
###-##-####
(Social Security Number)
101 Barclay Street
New York, New York 10286
(Business Address, Street, City, State) (Zip Code)
_________________
MINNESOTA POWER & LIGHT COMPANY
(Exact name of obligor as specified in its charter)
Minnesota 41-0418150
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 West Superior Street
Duluth, Minnesota 55802
(Address of principal executive offices) (Zip code)
_________________
FIRST MORTGAGE BONDS*
(Title of the indenture securities)
------------------
*Specific title(s) to be determined in connection with
sale(s) of First Mortgage Bonds.
ITEM 1. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.*
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility
None.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, I,
W.T. Cunningham, have signed this statement of eligibility in The City of
New York and State of New York, on the 24th day of January, 1997.
By: /s/ W.T. CUNNINGHAM
----------------------
W.T. Cunningham
--------------------
*Pursuant to General Instruction B, the Trustee has responded only to
Items 1 and 11 of this form since to the best of the knowledge of the
Trustee the obligor is not in default under any indenture under which the
Trustee is a trustee.