EXHIBIT 1.01
Form of August 13, 1999
NORTHERN STATES POWER COMPANY
(A WISCONSIN CORPORATION)
DEBT SECURITIES
UNDERWRITING AGREEMENT
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To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Northern States Power Company, a Wisconsin corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters") for whom you are acting as representatives (the
"Representatives"), its Debt Securities of the designation, with the terms and
in the aggregate principal amount specified in Schedule I hereto (the "Debt
Securities") to be issued under its Indenture, dated as of _____ __, 1999, from
the Company to Firstar Bank Milwaukee, National Association, as trustee (the
"Trustee"), as to be supplemented and amended by a supplemental indenture
relating to the Debt Securities (such Indenture as to be so supplemented and
amended being hereinafter referred to as the "Indenture"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives," as used herein,
shall each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act") and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form, including a prospectus, for the
registration under the Act of the Debt Securities, which registration
statement has become effective. Such registration statement and
prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement (which date is set forth in
Schedule I hereto). Any such amendment or supplement was filed with the
Commission and any such amendment has become effective. The Company
will file with the Commission a prospectus supplement (the "Prospectus
Supplement") relating to the Debt Securities pursuant to Rule 424
and/or Rule 434 under the Act. Copies of such registration statement
and prospectus, any such
amendment or supplement and all documents incorporated by reference
therein which were filed with the Commission on or prior to the date
of this Agreement have been delivered to you and copies of the
Prospectus Supplement will be delivered to you promptly after it is
filed with the Commission. Such registration statement as amended
prior to the date of this Agreement, and such prospectus, as amended
and supplemented prior to the date of this Agreement and as
supplemented by the Prospectus Supplement, are hereinafter called
the "Registration Statement" and the "Prospectus", respectively. Any
reference herein to the Registration Statement or the Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date of this Agreement and, if the
Company files any document pursuant to the Exchange Act after the
date of this Agreement and prior to the termination of the offering
of the Debt Securities by the Underwriters, which documents are
deemed to be incorporated by reference into the Prospectus, the term
"Prospectus" shall refer also to said prospectus as supplemented by
the documents so filed from and after the time said documents are
filed with the Commission. There are no contracts or documents of
the Company that are required to be filed as exhibits to the
Registration Statement or any documents incorporated by reference
therein by the Act, the Exchange Act or the rules and regulations
thereunder which have not been so filed.
(b) No order preventing or suspending the use of the
Prospectus or the Registration Statement has been issued by the
Commission and the Registration Statement, at the date of this
Agreement, complied in all material respects with the requirements of
the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the respective rules and regulations thereunder and
did not contain any untrue statement of a material fact or omit any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, at the time the
Prospectus Supplement is filed with the Commission and at the Closing
Date (as hereinafter defined), the Prospectus will comply in all
material respects with the Act and the rules and regulations thereunder
and will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED that the Company
makes no representations or warranties as to (A) that part of the
Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(B) the information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or
Prospectus.
(c) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder, and any documents so
filed and incorporated by reference subsequent to the date of this
Agreement will, when they are filed with the Commission, conform in all
material
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respects to the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder; and none of such documents
include or will include any untrue statement of a material fact or
omit or will omit to state any material fact required to be stated
therein or necessary to make the statements therein in the light of
the circumstances under which they were made not misleading.
(d) PricewaterhouseCoopers LLP, which audited certain of
the financial statements incorporated by reference in the Registration
Statement, are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company filed as a
part of or incorporated by reference in the Registration Statement or
Prospectus fairly present the financial position of the Company as of
the dates indicated and the results of its operations and changes in
financial position for the periods specified, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as disclosed
in the Prospectus Supplement. The unaudited pro forma financial
information incorporated by reference in the Registration Statement and
the Prospectus complies in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X and the pro
forma adjustments have been properly applied to the historical amounts
in the compilation of such information.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Wisconsin with due corporate authority to carry on the business in
which it is engaged and to own and operate the properties used by it in
such business, as described in the Prospectus; the Company is qualified
to do business as a foreign corporation and is in good standing under
the laws of the State of Michigan; and the Company is not required by
the nature of its business to be licensed or qualified as a foreign
corporation in any other state or jurisdiction; and, except as set
forth in the Prospectus Supplement, the Company has all material
licenses and approvals required at the date hereof to conduct its
business.
(g) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus (except for subsequent
issuance, if any, pursuant to reservations or agreements referred to
therein); the shares of issued and outstanding capital stock of the
Company have been duly and validly issued, are fully paid and
non-assessable and are owned by Northern States Power Company, a
Minnesota corporation.
(h) The Company has not sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus Supplement; and, since the respective
dates as of which information is given in the
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Registration Statement and the Prospectus Supplement, the Company
has not incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary
course of business, which are material to the Company, and there has
not been any material change in the capital stock or long-term debt
of the Company or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company, otherwise than as
set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement
and the Indenture, the issuance and delivery of the Debt Securities,
the consummation of the transactions herein contemplated, the
fulfillment of the terms hereof, nor compliance with the terms and
provisions of this Agreement, the Debt Securities and the Indenture
will conflict with, or result in the breach of, any of the terms,
provisions or conditions of the Restated Articles of Incorporation, as
amended, or By-laws of the Company, or of any contract, agreement or
instrument to which the Company is a party or in which the Company has
a beneficial interest or by which the Company is bound or of any order,
rule or regulation applicable to the Company of any court or of any
federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or over its
properties.
(j) The Debt Securities have been duly authorized for
issuance and sale pursuant to this Agreement and, when executed and
authenticated in accordance with the Indenture and delivered and paid
for as provided herein, will be duly issued and will constitute valid
and binding obligations of the Company enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency and other laws
affecting enforcement of creditors' rights, and will be entitled to the
benefits of the Indenture which will be substantially in the form
heretofore delivered to you.
(k) The Indenture has been duly and validly authorized by
the Company and, when duly executed and delivered by the Company,
assuming due authorization, execution and delivery thereof by the
Trustee, will constitute a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other laws affecting
enforcement of creditors' rights.
(l) The Public Service Commission of Wisconsin has issued
its order authorizing the issuance and sale of the Debt Securities on
terms consistent with this Agreement. Each other consent, approval,
authorization, order, registration or qualification of or with any
regulatory public body, state or federal, that is, or will be at the
Closing Date, necessary in connection with the issuance and sale of the
Debt Securities pursuant to this Agreement has been or will be
obtained, other than approvals that may be required under state
securities laws.
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(m) The Company has good and valid title to all real and
fixed property and leasehold rights which are owned by it, subject only
to taxes and assessments not yet delinquent; the lien of the
Supplemental and Restated Trust Indenture dated March 1, 1991, from the
Company to Firstar Trust Company (the "First Mortgage Indenture"); as
to parts of the Company's property, certain easements, conditions,
restrictions, leases, and similar encumbrances which do not affect the
Company's use of such property in the usual course of its business, and
certain minor defects in titles which are not material, and defects in
titles to certain properties which are not essential to the Company's
business; and mechanics' lien claims being contested or not of record
or for the satisfaction or discharge of which adequate provision has
been made by the Company pursuant to the First Mortgage Indenture; and
any real property and buildings held under lease by the Company is held
by it under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company is a party or of which any property of the Company is
the subject which, if determined adversely to the Company, would
individually or in the aggregate have a material adverse effect on the
financial position, stockholders' equity or results of operations of
the Company; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(o) The Company has all necessary power under statutory
provisions or permits to use its operating electric and gas properties.
(p) The Company has no "significant subsidiary", within
the meaning of Rule 1.02(w) of Regulation S-X under the Act.
(q) The Company is not an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended.
(r) Except as set forth in the Prospectus Supplement, the
Company (A) is in compliance with any and all applicable federal, state
and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B) has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and (C) is in
compliance with all terms and conditions of any such permits, licenses
or approvals, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Representatives
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and each other Underwriter, and the Representatives and each other
Underwriter agree, severally and not jointly, to purchase from the Company,
at the purchase price set forth in Schedule I hereto, the respective
principal amounts of the Debt Securities set forth opposite their respective
names in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Debt
Securities shall be made at the place, date and time specified in Schedule I
hereto (or such other place, date and time not later than eight full business
days thereafter as the Representatives and the Company shall designate), which
date and time may be postponed by agreement between the Representatives and the
Company (such date and time being herein called the "Closing Date"). Delivery of
the Debt Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order
of the Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Debt Securities will be delivered in definitive
registered form except that, if for any reason the Company is unable to deliver
the Debt Securities in definitive form, the Company reserves the right, as
provided in the Indenture, to make delivery in temporary form. Any Debt
Securities delivered in temporary form will be exchangeable without charge for
Debt Securities in definitive form. The Debt Securities will be registered in
the names of the Underwriters and in the principal amounts set forth in Schedule
II hereto except that if the Company receives a written request from the
Representatives prior to noon on the third business day preceding the Closing
Date giving the names in which the Debt Securities are to be registered and the
principal amounts thereof (which shall in each case be a multiple of $1,000) the
Company will deliver the Debt Securities so registered. The Debt Securities will
be made available to the Representatives for checking in New York, New York, not
later than 2:00 p.m., New York time, on the business day preceding the Closing
Date.
4. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) With the consent of the Representatives, the Company
will cause the Prospectus Supplement to be filed pursuant to Rule
424(b) and/or Rule 434 under the Act and will notify the
Representatives promptly of such filing. During the period for which a
prospectus relating to the Debt Securities is required to be delivered
under the Act, the Company will promptly advise the Representatives (i)
when any amendment to the Registration Statement shall have become
effective, (ii) when any subsequent supplement to the Prospectus
(including documents deemed to be incorporated by reference into the
Prospectus) has been filed, (iii) of any request by the Commission for
any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information, and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceedings for that purpose. The Company will not file any amendment
of the Registration Statement or supplement to the Prospectus
(including documents deemed to be incorporated by reference into the
Prospectus) unless the Company has furnished to the Representatives a
copy for their review prior to filing and will not file any such
proposed amendment or supplement to which the Representatives
reasonably object. The
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Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Debt Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Exchange Act or
the respective rules and regulations of the Commission thereunder, the
Company promptly, subject to paragraph (a) of this Section 4, will
prepare and file an amendment or supplement to the Prospectus with the
Commission or will make a filing with the Commission pursuant to
Section 13 or 14 of the Exchange Act, which will correct such statement
or omission or will effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives a consolidated earnings
statement (which need not be audited) of the Company, for a
twelve-month period beginning after the date of the Prospectus
Supplement filed pursuant to Rule 424(b) and/or Rule 434 under the Act,
as soon as is reasonably practicable after the end of such period, but
in any event no later than eighteen months after the "effective date of
the Registration Statement" (as defined in Rule 158(c) under the Act),
which will satisfy the provision of Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including at the
option of the Company, Rule 158).
(d) The Company will furnish to each of the
Representatives a signed copy of the Registration Statement as
originally filed and of each amendment thereto, including the Form T-1
of the Trustee and all powers of attorney, consents and exhibits filed
therewith (other than exhibits incorporated by reference), and will
deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by
reference therein) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, all amendments of and
supplements to such documents, in each case as soon as available and in
such quantities as the Representatives may reasonably request.
(e) The Company will furnish such information, execute
such instruments and take such action as may be required to qualify the
Debt Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Debt Securities;
PROVIDED that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or unlimited service
of process in any jurisdiction where it is not now so subject.
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(f) So long as the Debt Securities are outstanding, the
Company will furnish (or cause to be furnished) to each of the
Representatives, upon request, copies of (i) all reports to
stockholders of the Company and (ii) all reports and financial
statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this
Agreement and continuing to the Closing Date, the Company will not
offer, sell, or otherwise dispose of any Debt Securities of the Company
(except under prior contractual commitments which have been disclosed
to the Representatives), without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld.
5. EXPENSES. Whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, the Company will pay
all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issue and delivery of the Debt
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
Prospectus (including all documents incorporated by reference therein) and any
amendments thereof or supplements thereto, all costs and expenses (including
fees and expenses of counsel) incurred in connection with "blue sky"
qualifications, the determination of the legality of the Debt Securities for
investment by institutional investors and the rating of the Debt Securities, and
all costs and expenses of the printing and distribution of all documents in
connection with this underwriting. Except as provided in this Section 5 and
Section 8 hereto, the Underwriters will pay all their own costs and expenses,
including the fees of their counsel and any advertising expenses in connection
with any offer they may make.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Debt Securities shall be
subject, in the discretion of the Representatives, to the accuracy of the
representatives and warranties on the part of the Company contained herein as of
the date hereof and the Closing Date, to the accuracy of the statements of
Company officers made in any certificates given pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Prospectus Supplement relating to the Debt
Securities shall have been filed with the Commission pursuant to Rule
424(b) and/or Rule 434 within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in
accordance with Section 4(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission, and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction.
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(b) The Representatives shall be furnished with opinions,
dated the Closing Date, of Xxxx X. Xxxxxx, General Counsel and
Secretary of the Company, substantially in the form included as Exhibit
A.
(c) The Representations shall have received from Xxxxxxx,
Carton & Xxxxxxx, Chicago, Illinois, counsel for the Underwriters, such
opinion or opinions dated the Closing Date with respect to the
incorporation of the Company, this Agreement, the validity of the
Indenture, the Debt Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriters
the opinion of ________________ special Michigan counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company is duly authorized as a foreign
corporation under the laws of the State of Michigan and has
corporate power, right and authority to do business in the
State of Michigan in the manner as set forth in the Prospectus
to the extent it is authorized to transact such business in
the State of Wisconsin, and to own property in the State of
Michigan in the manner set forth in the Prospectus;
(ii) the Company has all necessary power under
Michigan statutory provisions and has all necessary franchises
to use its operating electric and gas properties in Michigan,
except that no determination has been made whether the Company
or its Michigan predecessor has secured permits and approvals,
if any, required by the Wetlands Protection Act, 1979 PA 302,
and except that the Company does not have electric franchises
in the cities of Ironwood, Bessemer and Wakefield, County of
Gogebic, State of Michigan. However, counsel for the Company,
Aberg, Bell, Blake & Xxxxxxx, rendered an opinion on April 19,
1968, that municipal franchises were not required for the
cities of Ironwood and Bessemer; and
(iii) No approval, authorization, consent,
certificate or order of any Michigan commission or regulatory
authority is required in connection with the issuance and sale
of the Debt Securities by the Company to the Underwriters as
provided in this Agreement except as may be required under
state securities laws.
(e) The Company shall have furnished to the
Representatives a certificate of the President or any Vice President of
the Company, dated the Closing Date, as to the matters set forth in
paragraph (a) and (i) of this Section 6 and to the further effect that
the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect
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as if made on the Closing Date, and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date, and
(ii) there has been no material adverse change in
the condition of the Company, financial or otherwise, or in
the earnings, affairs or business prospects of the Company,
whether or not arising in the ordinary course of business,
from that set forth or contemplated by the Registration
Statement or Prospectus Supplement.
(f) The Representatives shall have received letters from
the Company's independent public accountants (dated the date of this
Agreement and Closing Date, respectively, and in form and substance
satisfactory to the Representatives) advising that (i) they are
independent public accountants as required by the Act and published
rules and regulations of the Commission thereunder, (ii) in their
opinion, the financial statements and financial statement schedules
incorporated by reference in the Registration Statement and covered by
their opinion filed with the Commission under Section 13 of the
Exchange Act comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
published rules and regulations thereunder, (iii) they have performed
limited procedures, not constituting an audit, including a reading of
the latest available interim financial statements of the Company, a
reading of the minutes of meetings of the Board of Directors,
committees thereof, and of the Shareholders, of the Company since the
date of the most recent audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company responsible for financial accounting matters and such other
inquiries and procedures as may be specified in such letter, and on the
basis of such limited review and procedures nothing came to their
attention that caused them to believe that: (a) any material
modifications should be made to any unaudited financial statements of
the Company included or incorporated by reference in the Registration
Statement or Prospectus for them to be in conformity with generally
accepted accounting principles or any unaudited financial statements of
the Company included or incorporated by reference in the Registration
Statement or Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the rules and regulations of the Commission applicable to Form
10-Q; (b) with respect to the period subsequent to the date of the most
recent financial statements included or incorporated by reference in
the Prospectus and except as set forth in or contemplated by the
Registration Statement or Prospectus, there were any changes, at a
specified date not more than five business days prior to the date of
the letter, in the capital stock of the Company, increases in long-term
debt or decreases in stockholders' equity or net current assets of the
Company as compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the Prospectus,
or for the period from the date of the most recent financial statements
included or incorporated by reference in the Prospectus to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in operating revenues,
operating income, or net income, except in all instances for changes or
decreases set forth in such
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letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
(iv) they have carried out specified procedures performed for the
purpose of comparing certain specified financial information and
percentages (which is limited to financial information derived from
general accounting records of the Company) included or incorporated
by reference in the Registration Statement and Prospectus with
indicated amounts in the financial statements or accounting records
of the Company and (excluding any questions of legal interpretation)
have found such information and percentages to be in agreement with
the relevant accounting and financial information of the Company
referred to in such letter in the description of the procedures
performed by them; and (v) on the basis of a reading of the
unaudited pro forma financial information incorporated by reference
in the Registration Statement and the Prospectus, carrying out
certain specified procedures that would not necessarily reveal
matters of significance with respect to the comments set forth in
this paragraph (v), inquiries of certain officials of the Company
who have responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the unaudited pro forma
financial information, nothing came to their attention that caused
them to believe that the unaudited pro forma financial information
does not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such information.
(g) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there shall not have been any change or decrease specified in the
letter or letters referred to in paragraph (f) of this Section 6 which
makes it impractical or inadvisable in the judgment of the
Representatives to proceed with the public offering or the delivery of
the Debt Securities on the terms and in the manner contemplated by the
Prospectus.
(h) Subsequent to the date hereof, no downgrading shall
have occurred, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act.
(i) (i) The Company shall not have sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus Supplement, and (ii) since the date of
this Agreement, the Company shall not have incurred any liabilities or
obligations, direct or contingent, or entered into any transactions,
not in the ordinary course of business, which are material to the
Company,
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and there shall not have been any change in the capital stock or
long-term debt of the Company or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company otherwise than as set forth or contemplated
in the Prospectus Supplement, the effect of which, in any such case
described in clause (i) or (ii) is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Debt Securities on the terms and in the manner contemplated by the
Prospectus.
(j) No Representative shall have advised the Company that
the Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact which in the
opinion of counsel for the Underwriters is material or omits to state a
fact which in the opinion of counsel for the Underwriters is material
and is required to be stated therein or is necessary to make the
statements therein not misleading.
(k) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or facsimile transmission confirmed in writing.
7. CONDITIONS OF COMPANY'S OBLIGATIONS. The obligations of the
Company to sell and deliver the Debt Securities are subject to the following
conditions:
(a) Prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or the Representatives, threatened.
(b) The orders of the Public Service Commission of
Wisconsin and the Michigan Public Service Commission referred to in
paragraph (1) of Section 1 shall be in full force and effect.
If any of the conditions specified in this Section 7 shall not have
been fulfilled, this Agreement and all obligations of the Company hereunder may
be cancelled on or at any time prior to the Closing Date by the Company. Notice
of such cancellation shall be given to the Underwriters in writing or by
telephone or facsimile transmission confirmed in writing.
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8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Debt Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by them in connection with the proposed
purchase and sale of the Debt Securities.
9. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the Debt
Securities as originally filed or in any amendment thereof), or in the
Prospectus or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investing or
defending any such loss, claim, damage, liability or action; PROVIDED that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use therein and PROVIDED FURTHER that such indemnity with
respect to a prospectus included in the registration statement or any amendment
thereto prior to the supplementing thereof with the Prospectus Supplement shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Debt Securities which are the subject thereof if such
person was not sent or given a copy of the Prospectus (but without the documents
incorporated by reference therein) at or prior to the confirmation of the sale
of such Debt Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in such prospectus was corrected in the Prospectus in a timely manner
and in sufficient quantities to permit such delivery by the Underwriters. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who has signed the Registration Statement and each person, if any, who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Underwriters but only with reference to written
information furnished to the Company by or on behalf of such
Underwriter through the Representatives
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specifically for use in the documents referred to in the foregoing
indemnity, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the commencement thereof; but the
omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under this Section 9. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; PROVIDED
THAT if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified party, or
parties shall have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election to assume the defense of such action and approval by the
indemnifying party of counsel, the indemnifying party will not be
liable to such indemnifying party under this Section 9 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnifying party
shall have employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
and one local counsel, approved by the Representatives in the case of
subparagraph (a), representing the indemnifying parties under
paragraphs (a) or (b), as the case may be, who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnifying party to represent the indemnifying
party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnifying party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in the Section 9
is unavailable to or insufficient to hold harmless an indemnified party
under paragraph (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by
14
such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand the
offering of the Debt Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under paragraph (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus Supplement. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions
pursuant to this paragraph (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in
this paragraph (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this paragraph (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the
provisions of this paragraph (d), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations
in this paragraph (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the
Act; and the obligations of the Underwriters under this Section 9 shall
be in addition to any liability which the respective Underwriters may
otherwise have and
15
shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
10. DEFAULT BY AN UNDERWRITER. (a) If any Underwriter shall
default in its obligation to purchase the Debt Securities which it has agreed to
purchase hereunder (in this Section called "Unpurchased Debt Securities"), the
Representatives may in their discretion arrange for themselves or any party or
other parties to purchase such Unpurchased Debt Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Unpurchased Debt Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Unpurchased Debt
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Unpurchased Debt Securities, the Representatives or the
Company shall have the right to postpone the Closing Date for such Unpurchased
Debt Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement
with respect to such Unpurchased Debt Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Unpurchased Debt Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in
paragraph (a) above, the aggregate principal amount of such Unpurchased
Debt Securities which remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of the Debt Securities, then the
Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Debt Securities which such
Underwriter agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Debt Securities which such Underwriter
agreed to purchase hereunder) of the Unpurchased Debt Securities of
such defaulting Underwriter or Underwriters for which such arrangements
have not been made, but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Unpurchased Debt Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in
paragraph (a) above, the aggregate principal amount of Unpurchased Debt
Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Debt Securities, as referred to in
paragraph (b) above, of if the Company shall not exercise the right
described in paragraph (b) above to require non-defaulting Underwriters
to purchase Unpurchased Debt
16
Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided
in Section 5 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for all Debt Securities, if prior to such time
(i) trading in securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been established on such
Exchange, (ii) if a banking moratorium shall have been declared either by
federal, Wisconsin or New York State authorities, (iii) if trading in any
securities of the Company shall have been suspended or halted, or (iv) if there
shall have occurred any outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a war or national
emergency or any other calamity or crisis the effect of which on the financial
markets in the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Debt Securities on the terms and in the manner
contemplated in the Prospectus.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to the Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of their respective officers, directors or controlling persons
within the meaning of the Act, and will survive delivery of and payment for the
Debt Securities. The provisions of Sections 5, 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. NOTICES. All communications hereunder will be in writing and,
if sent to the Representatives, will be mailed, delivered or transmitted and
confirmed to them at their address set forth for that purpose in Schedule I
hereto or, if sent to the Company, will be mailed, delivered or transmitted and
confirmed to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxx 00000,
attention Secretary.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 9 hereof, and no
other person will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Wisconsin.
16. COUNTERPARTS. This Agreement may be executed in counterparts,
all of which, taken together, shall constitute a single agreement among the
parties to such counterparts.
17
17. REPRESENTATION OF THE UNDERWRITERS. The Representatives
represent and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and that
the Representatives' execution and delivery of this Agreement and any action
under this Agreement taken by such Representatives will be binding upon all
Underwriters.
18. OTHER. Time shall be of the essence for all purposes of this
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington D.C. is open for business.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
By
--------------------------------------
[Title]
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[Name of Representative(s)]
By
------------------------------------------------------
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF THE SEVERAL UNDERWRITERS, IF
ANY, NAMED IN SCHEDULE II TO THE FOREGOING
AGREEMENT.
18
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 333-
Representatives and Addresses:
Debt Securities:
Designation: Debt Securities, Series due , _____%
Principal Amount: $
Supplemental Indenture dated as of
Date of Maturity:
Interest Rate: ____% per annum, payable _______ and ______ of each
year, commencing
Purchase Price: ____% of the principal amount thereof, PLUS accrued
interest, if any, from _____________ to the date of payment and
delivery.
Public Offering Price: _____% of the principal amount thereof, plus
accrued interest, if any, from _________________ to the date of payment
and delivery.
Redemption Terms:
Payment to be made in federal (same day) funds. Yes No
---- ----
Closing Date and Location:
Office for Delivery of Debt Securities:
Office for Payment of Debt Securities:
Office for Checking of Debt Securities:
19
SCHEDULE II
NAME OF UNDERWRITER PRINCIPAL
------------------- AMOUNT OF
DEBT SECURITIES
---------------
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . $
===========
20
EXHIBIT A
FORM OF OPINION OF XXXX X. XXXXXX
RE: $ ,000,000 PRINCIPAL AMOUNT OF DEBT SECURITIES, SERIES DUE ,
% OF NORTHERN STATES POWER COMPANY, A WISCONSIN CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Northern States Power Company, a Wisconsin corporation,
herein called the "Company," with respect to the issue and sale by the Company
of $ principal amount of Debt Securities, Series due , % herein
called the "Debt Securities." In connection therewith, I have participated in
the preparation of the proceedings for the issuance and sale of the Debt
Securities, including the Underwriting Agreement dated (the "Underwriting
Agreement") between you and the Company relating to your purchase of the Debt
Securities, and have either participated in the preparation of or examined
the Indenture dated _____ __, 1999 and the Supplemental Indenture dated as of
, creating the Debt Securities, all from the Company to Firstar Bank
Milwaukee, National Association, as Debt Trustee (which Indenture and
Supplemental Indenture are herein collectively called the "Indenture"). I
have also participated in the preparation of or examined the registration
statement and the accompanying prospectuses and any supplements thereto, as
filed under the Securities Act of 1933, as amended (herein called the "Act"),
with respect to the Debt Securities. The terms "Registration Statement" and
"Prospectus" as used herein shall have the meanings ascribed to such terms by
the Underwriting Agreement. My examination has extended to all statutes,
records, instruments, and documents which I have deemed necessary to examine
for the purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under
the laws of the State of Wisconsin; has corporate power, right, and
authority to do business and to own property in the State of Wisconsin
in the manner and as set forth in the Prospectus; has no "significant
subsidiaries" within the meaning of Rule 1.02(w) of Regulation S-X
under the Act; and has corporate power, right, and authority to make
the Indenture and issue and sell the Debt Securities;
2. The authorized capital stock of the Company is as set
forth in the Prospectus and all of the issued shares of capital stock
of the Company have been duly authorized and validly issued, are fully
paid and non-assessable and are owned by Northern States Power Company,
a Minnesota corporation;
3. The Underwriting Agreement has been duly authorized,
executed, and delivered by the Company and is a valid and binding
obligation of the Company, except
to the extent that the provisions for indemnities in the Underwriting
Agreement may be held to be unenforceable as against public policy;
4. The Indenture has been duly authorized by appropriate
corporate proceedings on the part of the Company, has been duly
executed and delivered and constitutes a legal, valid, and binding
instrument enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting enforcement of creditor's rights;
5. The issuance of the Debt Securities in accordance
with the terms of the Indenture and the sale and delivery thereof
pursuant to the provisions of the Underwriting Agreement has been duly
authorized by the Company; the statements made under the captions
"Description of Securities" in the Prospectus and "Supplemental
Description of Securities" in the Prospectus Supplement, insofar as
they purport to summarize provisions of documents specifically referred
to therein, fairly present the information called for with respect
thereto by Form S-3; the Debt Securities are in due legal form,
constitute legal, valid, and binding obligations of the Company, and
are enforceable in accordance with their terms;
6. The consummation of the transactions contemplated in
the Underwriting Agreement and the fulfillment of the terms thereof and
compliance by the Company with all the terms and provisions of the
Indenture will not result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust or other agreement or instrument known to me to which the Company
is a party or by which it is bound, or the Restated Articles of
Incorporation, as amended, or By-laws of the Company or, to the best of
my knowledge, any order, rule or regulation applicable to the Company
of any court or of any federal or state regulatory body or
administrative agency or other government body having jurisdiction over
the Company or its property;
7. The Registration Statement has become effective under
the Act. The Prospectus Supplement (as defined in the Underwriting
Agreement) has been filed pursuant to Rule 424(b) under the Act and no
proceedings for a stop order have been instituted or to my knowledge
are pending or threatened under Section 8(d) of the Act; the Public
Service Commission of Wisconsin has issued its order authorizing the
issuance and sale of the Debt Securities; the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended; and no
further approval of, authorization, consent certificate or order of any
governmental body, federal, state (other than the approval of the
Michigan Public Service Commission) or other, is required in connection
with the issuance and sale of the Debt Securities by the Company to you
as provided in the Underwriting Agreement, except as may be required by
"blue sky" or state securities laws;
8. At the time the Registration Statement became
effective and at the date of the Underwriting Agreement, the
Registration Statement (other than the financial statements and
supporting schedules included therein, as to which no opinion is
rendered)
2
complied as to form in all material respects with the requirements of
the Act, the Trust Indenture Act of 1939, as amended, and the rules
and regulations thereunder;
9. I do not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or
to be filed as exhibits to the Registration Statement which are not
described and filed as required;
10. The Company has all necessary power under statutory
provisions and permits to use its operating electric and gas
properties; and
11. All statements contained in the Registration
Statement and Prospectus purporting to set forth my opinion or to be
based upon my opinion correctly set forth my opinion on said respective
matters.
In the course of my participation in the preparation of the
Registration Statement and prospectus I made investigations as to the accuracy
of certain of the statements of fact contained therein, I discussed other
matters with officers, employees and representatives of the Company, and I
examined various corporate records and data. While I do not pass up on and do
not assume responsibility for and shall not be deemed to have independently
verified the accuracy, completeness or fairness of the Registration Statement or
the Prospectus (except as to matters set forth in Paragraphs 8 and 11 above),
nothing has come to my attention that would lead me to believe that the
Registration Statement at the time it became effective or at the date of the
Underwriting Agreement contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus at the date of
the Underwriting Agreement or as of the date hereof contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Respectfully submitted,
By
--------------------------------------
Xxxx X. Xxxxxx
Vice President-Regulatory Affairs and
General Counsel
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