EXHIBIT 1(a)
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
FORM OF
UNDERWRITING AGREEMENT
(FIRST MORTGAGE BONDS)
[__________], [_______]
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Northern States Power Company, a Minnesota corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), its First Mortgage Bonds of the designation, with the terms
and in the aggregate principal amount specified in Schedule I hereto (the
"Bonds") to be issued under its Trust Indenture, dated as of February 1, 1937,
from the Company to BNY Midwest Trust Company, as successor trustee (the
"Trustee"), as previously amended and supplemented and as to be amended and
supplemented by a supplemental indenture relating to the Bonds (such Trust
Indenture as so supplemented and amended being hereinafter referred to as the
"Indenture"). If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form, including a prospectus, for the registration under the Act of the
Bonds, which registration statement has become effective. Such registration
statement and prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement (which date is set forth in Schedule I
hereto). Any such amendment or supplement was filed with the Commission and any
such amendment has become effective. Each prospectus used before the
registration statement became effective, and any prospectus that omitted the
offering terms that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "preliminary prospectus". The
Company will file with the Commission a prospectus supplement (the "Prospectus
Supplement") relating to the Bonds pursuant to Rule 424 and/or Rule 434 under
the Act. Copies of such
registration statement and prospectus, any such amendment or supplement and all
documents incorporated by reference therein which were filed with the Commission
on or prior to the date of this Agreement have been delivered to you and copies
of the Prospectus Supplement will be delivered to you promptly after it is filed
with the Commission. Such registration statement, as amended prior to the date
of this Agreement, and such prospectus, as amended and supplemented prior to the
date of this Agreement and as supplemented by the Prospectus Supplement, are
hereinafter called the "Registration Statement" and the "Prospectus",
respectively. Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the date of this Agreement and, if the Company files any document pursuant to
the Exchange Act after the date of this Agreement and prior to the termination
of the offering of the Bonds by the Underwriters, which documents are deemed to
be incorporated by 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 or any of its subsidiaries 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 of
the Commission 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 of the Commission 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 the Registration Statement or
Prospectus. Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 of the Act, complied when so filed in all material
respects with the rules under the Act, and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(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
2
incorporated by reference subsequent to the date of this Agreement will, when
they are filed with the Commission, conform in all material respects to the
requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder; and none of such documents include or will include any
untrue statement of a material fact or omit or will omit to state any material
fact required to be stated therein or necessary to make the statements therein
in the light of the circumstances under which they were made not misleading.
(d) Deloitte & Touche LLP, which audited the consolidated
financial statements and the related financial statement schedule as of and for
the year ended December 31, 2002, and Xxxxxx Xxxxxxxx LLP, which audited the
consolidated financial statements and the related financial statement schedule
as of and for the years ended December 31, 2001 and December 31, 2000, each of
which are incorporated by reference in the Registration Statement and Prospectus
from the Company's Annual Report on Form 10-K for the year ended December 31,
2002, are independent auditors as required by the Act and the rules and
regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the Registration
Statement or Prospectus fairly present the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results of their
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.
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Minnesota 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 States of North Dakota and South
Dakota; 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 Company has no subsidiaries which would be deemed
significant subsidiaries under Regulation S-X.
(h) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus
Supplement; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus Supplement, neither the Company
nor any of its subsidiaries has 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 its subsidiaries, and there has
not been any material change in the capital stock or long-term debt of the
Company or any of its
3
subsidiaries 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 and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the
Indenture, the issuance and delivery of the Bonds, the consummation of the
transactions herein contemplated, the fulfillment of the terms hereof, nor
compliance with the terms and provisions of this Agreement, the Bonds and the
Indenture will conflict with, or result in the breach of, any of the terms,
provisions or conditions of the Articles of Incorporation, as amended, or
by-laws of the Company, or of any contract, agreement or instrument to which the
Company is a party or in which the Company has a beneficial interest or by which
the Company is bound or of any order, rule or regulation applicable to the
Company of any court or of any federal or state regulatory body or
administrative agency or other governmental body having jurisdiction over the
Company or over its properties.
(j) The Bonds have been duly authorized for issuance and sale
pursuant to this Agreement and, when executed and authenticated in accordance
with the Indenture and delivered and paid for as provided herein, will be duly
issued and will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by bankruptcy,
insolvency and other laws affecting enforcement of creditors' rights, and will
be entitled to the benefits of the Indenture which will be substantially in the
form heretofore delivered to you.
(k) The Indenture has been duly and validly authorized by the
Company and, when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Trustee, will constitute a
valid and binding obligation of the Company enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency or
other laws affecting enforcement of creditors' rights.
(l) This Agreement has been duly authorized, executed and
delivered by the Company.
(m) The Minnesota Public Utilities Commission has issued its
order approving the Company's capital structure which order authorizes the
issuance of the Bonds, and no consent, approval, authorization or order of, or
filing or registration with, any court having jurisdiction over the Company, and
no other approval of any regulatory public body, state or federal, is, or will
be at the Closing Date (as hereinafter defined), necessary in connection with
the issuance and sale of the Bonds pursuant to this Agreement or the execution,
delivery and performance of this Agreement and the Indenture, other than
approvals that may be required under state securities laws.
(n) The Company has good and valid title to all real and fixed
property and leasehold rights described or enumerated in the Indenture (except
such properties as have been released from the lien thereof in accordance with
the terms thereof) and title to all personal property owned by it, subject only
to taxes and assessments not yet delinquent; the lien of the 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; and any real property and
buildings held under lease by the Company are held by it under valid,
4
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.
(o) Other than as set forth or contemplated in the Prospectus as
of the date hereof, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the business, consolidated
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(p) 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.
(q) Except as set forth in the Prospectus Supplement, the Company
and its subsidiaries (A) are 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) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective business and (C) are 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 business,
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Representatives and each other Underwriter, and the
Representatives and each other Underwriter agree, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto,
the respective principal amounts of the Bonds set forth opposite their
respective names in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Bonds
shall be made at the place, date and time specified in Schedule I hereto (or
such other place, date and time not later than eight full business days
thereafter as the Representatives and the Company shall designate), which date
and time may be postponed by agreement between the Representatives and the
Company (such date and time being herein called the "Closing Date"). Delivery of
the Bonds shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Bonds will be delivered in definitive registered
form except that, if for any reason the Company is unable to deliver the Bonds
in definitive form, the Company reserves the right, as provided in the
Indenture, to make delivery in temporary form.
5
Any Bonds delivered in temporary form will be exchangeable without charge for
Bonds in definitive form. Unless otherwise indicated on Schedule I, the Bonds
will be registered in the name of Cede & Co., as nominee of The Depository Trust
Company and in the principal amounts set forth in Schedule II hereto. The Bonds
will be made available to the Representatives for checking in New York, New
York, not later than 2:00 p.m., New York City time, on the business day
preceding the Closing Date.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) With the consent of the Representatives, the Company will
cause the Prospectus Supplement to be filed pursuant to Rule 424 (b) and/or Rule
434 under the Act and will notify the Representatives promptly of such filing.
During the period for which a prospectus relating to the Bonds is required to be
delivered under the Act, the Company will promptly advise the Representatives
(i) when any amendment to the Registration Statement shall have become
effective, (ii) when any subsequent supplement to the Prospectus (including
documents deemed to be incorporated by reference into the Prospectus) has been
filed, (iii) of any request by the Commission for any amendment of or supplement
to the Registration Statement or the Prospectus or for any additional
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceedings for that purpose. During the period for which a
prospectus relating to the Bonds is required to be delivered under the Act, 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 your review prior to filing and will not file any such proposed
amendment or supplement to which the Representatives reasonably object. The
Company will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Bonds is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations of the Commission thereunder, the Company
promptly, subject to paragraph (a) of this Section 4, will prepare and file an
amendment or supplement to the Prospectus with the Commission, and furnish to
the Underwriters a reasonable number of copies thereof, 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).
6
(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 and all powers of attorney, consents
and exhibits filed therewith (other than exhibits incorporated by reference),
and will deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference
therein) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such documents,
in each case as soon as available and in such quantities as the Representatives
may reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such action as may be required to qualify the Bonds for
sale under the laws of such jurisdictions as the Representatives may designate
and will maintain such qualifications in effect so long as required for the
distribution of the Bonds; provided that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(f) So long as the Bonds are outstanding, the Company will furnish
(or cause to be furnished) to each of the Representatives, upon request, copies
of (i) all reports to stockholders of the Company and (ii) all reports and
financial statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this Agreement
and continuing to the Closing Date, the Company will not offer, sell, or
otherwise dispose of any debt securities of the Company (except under prior
contractual commitments which have been disclosed to you), without the prior
written consent of the Representatives, which consent shall not be unreasonably
withheld.
(h) The Company will use the proceeds from the sale of the Bonds
for only the purposes described in the Prospectus and, without limiting the
generality of the foregoing, will not use any such proceeds to make loans to any
affiliate of the Company or for any purpose that would cause the issuance of the
Bonds not to qualify for exemption under the Public Utilities Holding Company
Act of 1935, as amended.
5. Expenses. Whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, the Company will pay
all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issue and delivery of the Bonds to
the Underwriters, all fees and expenses of the Company's counsel and
accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
preliminary prospectus, the Prospectus (including all documents incorporated by
reference therein) and any amendments thereof or supplements thereto, all costs
and expenses (including fees and expenses of counsel) incurred in connection
with "blue sky" qualifications, the determination of the legality of the Bonds
for investment by institutional investors and the rating of the Bonds, and all
costs and expenses of the printing and distribution of all documents in
connection with this underwriting. Except as provided in this Section 5 and
Section 8 hereof, the Underwriters will pay all their own costs and expenses,
including the fees of their counsel and any advertising expenses in connection
with any offer they may make.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Bonds shall be subject, in the
discretion of the Representatives, to the accuracy of the representations and
warranties on the part of the Company contained herein
7
as of the date hereof and the Closing Date, to the accuracy of the statements of
Company officers made in any certificates given pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Prospectus Supplement relating to the Bonds shall have
been filed with the Commission pursuant to Rule 424(b) and/or Rule 434 within
the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction.
(b) The Representatives shall be furnished with opinions, dated
the Closing Date, of Xxxx X. Xxxxxxx, Vice President and General Counsel of the
Company, substantially in the form included as Exhibit A, and Xxxxx Day,
Chicago, Illinois, counsel for the Company, substantially in the form included
as Exhibit B.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxxx
& Xxxxxxxx, New York, New York, counsel for the Underwriters, such opinion or
opinions dated the Closing Date with respect to this Agreement, the validity of
the Indenture, the Bonds, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(d) 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 clause (a) and (h) 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 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 and its subsidiaries taken as a whole,
financial or otherwise, or in the earnings, affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business, from that set forth
or contemplated by the Registration Statement or Prospectus Supplement.
(e) The Representatives shall have received letters from Deloitte
& Touche LLP, independent public accountants for the Company (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
8
regulations of the Commission thereunder, (ii), in their opinion, the
consolidated financial statements and supplemental schedules for the year ended
December 31, 2002 incorporated by reference in the Registration Statement or
Prospectus 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 of the Commission thereunder, (iii) that 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
Shareholder 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 consolidated 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 consolidated 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 and its consolidated subsidiaries 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 of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Representatives; and (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.
(f) 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 (e) of this Section 6 which makes it impractical or inadvisable in the
judgment of the Representatives to proceed with the public offering or the
delivery of the Bonds on the terms and in the manner contemplated by the
Prospectus.
9
(g) 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.
(h) (i) Neither the Company nor any of its subsidiaries shall 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, neither the Company nor
any of its subsidiaries shall have incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, which are material to the Company and its subsidiaries, and
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries 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
and its subsidiaries 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 Underwriters so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Bonds on the terms and in the manner contemplated by the
Prospectus.
(i) 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.
(j) All corporate proceedings and other legal matters incident to
the authorization, form and validity of the Indenture and this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory to counsel for
the Underwriters, and 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 telegraph confirmed in writing.
7. Conditions of Company's Obligations. The obligations of the
Company to sell and deliver the Bonds are subject to the following conditions:
(a) Prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose
10
shall have been instituted or, to the knowledge of the Company or the
Representative, threatened.
(b) The order of the Minnesota Public Utilities
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.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Bonds provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by them in connection with the proposed purchase
and sale of the Bonds, including the reasonable fees and disbursements of
counsel for the Underwriters.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other federal or state statutory law
or regulation, at common law or otherwise insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Bonds as
originally filed or in any amendment thereof, or in the preliminary Prospectus
Supplement or 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 as reasonably incurred by them in
connection with investigating or defending any such loss, claim, damages,
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 Bonds which
are the subject thereof if such person was not sent or given a copy of the
Prospectus (but without the documents incorporated by reference therein) at or
prior to the confirmation of the sale of such Bonds to such person in any case
where such delivery is required by the Act and the untrue
11
statement or omission of a material fact contained in such Prospectus was
corrected in the Prospectus, provided that the Company shall have delivered the
Prospectus, in a timely manner and in sufficient quantities to permit such
delivery by the Underwriters. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to the Underwriters but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for use in the
documents referred to in the foregoing indemnity, and agrees to reimburse each
such indemnified party for any legal or other expenses reasonably incurred by
them in connection with 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 (x) under this Section 9
except to the extent it has been materially prejudiced by such omission or (y)
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 so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Representatives in the case of subparagraph (a), representing
the indemnified parties under subparagraphs (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 indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party shall without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
12
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Bonds. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (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 subsection (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
subsection (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 subsection (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 subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Bonds underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (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 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.
13
10. Default by an Underwriter.
(a) If any Underwriter shall default in its obligation to purchase
the Bonds which it has agreed to purchase hereunder (in this Section called the
"Unpurchased Bonds"), the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Unpurchased Bonds
on the terms contained herein. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such
Unpurchased Bonds, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Unpurchased Bonds on such
terms. 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 Bonds, or the Company notifies the Representatives that it
has so arranged for the purchase of such Unpurchased Bonds, the Representatives
or the Company shall have the right to postpone the Closing Date for such
Unpurchased Bonds for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement
with respect to such Unpurchased Bonds.
(b) If, after giving effect to any arrangements for the purchase
of the Unpurchased Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Unpurchased Bonds which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of the Bonds,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Bonds which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Bonds which
such Underwriter agreed to purchase hereunder) of the Unpurchased Bonds of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Unpurchased Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Bonds which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Bonds, as referred
to in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Unpurchased Bonds of a defaulting Underwriter or Underwriters, then
this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution agreements in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
14
11. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for all Bonds, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) if a banking moratorium shall have been declared either by
Federal, Minnesota 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 Bonds 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 this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of their respective officers, directors or controlling persons
within the meaning of the Act, and will survive delivery of and payment for the
Bonds. The provisions of Sections 5, 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and,
if sent to the Representatives, will be mailed, delivered or transmitted and
confirmed to them at their address set forth for that purpose in Schedule 1
hereto or, if sent to the Company, will be mailed, delivered or transmitted and
confirmed to it at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, attention
Secretary (fax: 000-000-0000). All communications shall take effect at the time
of receipt thereof.
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 New York.
16. Counterparts. This Agreement may be executed in counterparts,
all of which, taken together, shall constitute a single agreement among the
parties to such counterparts.
17. Representation of the Underwriters. The Representatives
represent and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and that
the Representatives' execution and delivery of this Agreement and any action
under this Agreement taken by such Representatives will be binding upon all
Underwriters.
18. Other. Time shall be of the essence for all purposes of this
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington D.C. is open for business.
15
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 ______________________________________
Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
[NAME OF REPRESENTATIVE]
By _________________________________________________
For itself or themselves and as Representatives of
the several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
16
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 333-
Representatives and Addresses:
Bonds:
Designation:
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 from ___________ to the date of
payment and delivery.
Public Offering Price: ______% of the principal amount thereof, plus
accrued interest from ____________ to the date
of payment and delivery.
Redemption Provisions:
Payment to be made in federal (same day) funds. ___ Yes ___ No
Closing Date and Location:
Office for Delivery of Bonds:
Office for Payment of Bonds:
Office for Checking of Bonds:
1
SCHEDULE II
NAME AMOUNT
---- ------
[ ]
[ ] ------
Total............................................. $
======
1
EXHIBIT A
FORM OF OPINION OF XXXX X. XXXXXXX
RE: $[_______] PRINCIPAL AMOUNT OF[_______]% FIRST MORTGAGE BONDS, SERIES
DUE [_______], OF NORTHERN STATES POWER COMPANY, A MINNESOTA
CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Northern States Power Company, a Minnesota corporation,
herein called the "Company," with respect to the issue and sale by the Company
of $[_______] principal amount of First Mortgage Bonds, Series due [_______],
herein called the "Bonds." In connection therewith I have participated in the
preparation of the proceedings for the issuance and sale of the Bonds including
the Underwriting Agreement dated [_______], [_______], between you and the
Company relating to your purchase of the Bonds, herein called the "Agreement,"
and have either participated in the preparation of or examined the Trust
Indenture dated February 1, 1937, as previously amended and supplemented, and
the Supplemental Indenture dated as of [_______], [_______], creating the Bonds,
all from the Company to BNY Midwest Trust Company, as successor Trustee (which
Trust Indenture, as so amended and supplemented, and Supplemental Indenture are
herein collectively called the "Indenture"). I also have participated in the
preparation of or examined the registration statement and any amendments thereto
and the accompanying prospectuses and any supplements thereto, as filed under
the Securities Act of 1933, as amended (the "Act"), with respect to the Bonds.
Whenever the terms "Registration Statement" or "Prospectus" are used herein,
they shall have the respective meanings set forth in the 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 Minnesota; has corporate power, right, and
authority to do business and to own property in the states of
Minnesota, North Dakota and South Dakota in the manner and as set forth
in the Prospectus; has corporate power, right and authority to own
securities of its subsidiaries; and has corporate power, right, and
authority to make the Indenture and issue and sell the Bonds;
2. The authorized capital stock of the Company is as set
forth in the Prospectus and all of the issued shares of capital stock
of the Company have been duly authorized and validly issued and are
fully paid and non-assessable;
1
3. The 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 may
be held to be unenforceable as against public policy;
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming that the Indenture is the valid
and legally binding obligation of the Trustee, constitutes a valid and
legally binding obligation of the Company enforceable against the
Company in accordance with its terms, except as the provisions of the
United States Bankruptcy Code may affect the validity of the lien
thereof with respect to proceeds, products, rents, issues, or profits
realized, and additional property acquired, after the commencement of a
case under said Code, and except as enforcement of the provisions of
the Indenture may be limited by the laws of the States of Minnesota,
North Dakota and South Dakota (where property covered thereby is
located) affecting the remedies for the enforcement of the security
provided for in the Indenture (which state laws do not in my opinion
make such remedies inadequate for the realization of the benefits of
such security) or except as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, and
similar laws of general applicability relative to or affecting
creditors' rights or remedies according to general equity principles
whether such principles are considered in law or in equity;
5. The issuance of the Bonds in accordance with the
terms of the Indenture and the sale and delivery thereof pursuant to
the provisions of the Agreement have been duly authorized by the
Company; the statements made under the caption "Description of the
First Mortgage Bonds" in the Prospectus, insofar as they purport to
summarize provisions of documents specifically referred to therein,
fairly present the information called for with respect thereto by Form
S-3; the Bonds have been duly authorized, executed and issued by the
Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Agreement, will
constitute valid and legally binding obligations of the Company
enforceable (subject to the qualifications expressed in paragraph 4
above with respect to the validity and enforceability of certain of the
provisions of the Indenture) against the Company in accordance with
their terms and entitled to the benefits of the Indenture;
6. The statements under the caption "Description of the
First Mortgage Bonds" in the Prospectus, insofar as they purport to
summarize provisions of the documents specifically referred to therein,
are accurate in all material respects.
7. Neither the execution and delivery of the Indenture or
the Agreement, the consummation of the transactions contemplated
thereby, the issuance and delivery of the Bonds nor the compliance by
the Company with all the terms and provisions of the Indenture or the
Agreement will 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 in which the Company has a beneficial interest or by which it
is bound or to which any of its property or assets is subject, or the
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 governmental body having jurisdiction
over the Company or its property;
2
8. The Registration Statement has become effective under
the Act. The Prospectus Supplement (as defined in the 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 Minnesota Public
Utilities Commission has issued its order approving the Company's
capital structure which order authorizes the issuance of the Bonds; the
Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); and no further approval
of, authorization, consent, certificate or order of any governmental
body, federal, state or other, is required in connection with the
issuance and sale of the Bonds by the Company to you as provided in the
Agreement, except as may be required by state securities laws;
9. At the time the Registration Statement became
effective, the Registration Statement (other than the financial
statements and supporting schedules included or incorporated by
reference therein, as to which no opinion is being expressed) complied
as to form in all material respects with the requirements of the Act,
the rules and regulations thereunder, the Trust Indenture Act and the
rules and regulations thereunder;
10. 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;
11. The Indenture is in proper form, conforming to the
laws of the States of Minnesota, North Dakota and South Dakota, to give
and create the lien which it purports to create and has been and now is
duly and properly recorded or filed in all places necessary to
effectuate the lien of the Indenture;
12. The Company has good and valid title to all real and
fixed property and leasehold rights described or enumerated in the
Indenture (except such properties as have been released from the lien
thereof in accordance with the terms thereof), and good and marketable
title to all personal property owned by it, subject only to: (a) taxes
and assessments not yet delinquent; (b) the lien of the Indenture; (c)
as to parts of the Company's property, certain easements, conditions,
restrictions, leases, and similar encumbrances which do not effect the
Company's use of the property in the usual course of business, certain
minor defects in titles which are not material, defects in titles to
certain properties which are not essential to the Company's business;
and mechanic's lien claims being contested or not of record or for the
satisfaction or discharge of which adequate provisions have been made
by the Company pursuant to the Indenture;
13. The Bonds are secured by and entitled to the benefits
of the Indenture equally and ratably, except as to sinking fund
provisions, with all other bonds duly issued and outstanding under the
Indenture by a valid and direct first mortgage lien of the Indenture on
all of the real and fixed properties, leasehold rights, franchises, and
permits
3
now owned by the Company, subject only to the items set forth in the
preceding paragraph 12 of this opinion;
14. The Bonds also are secured equally and ratably,
except as to sinking fund provisions, with all other bonds duly issued
and outstanding under the Indenture by a valid and direct first
mortgage lien (subject to permitted liens as defined in the Indenture)
on all real and fixed property hereinafter acquired by the Company in
conformity with the terms of the Indenture, except as the United States
Bankruptcy Code may affect the validity of the lien of such Indenture
on property acquired after the commencement of a case under said Code,
except as to the prior lien of the Trustee under the Indenture in
certain events specified therein, and except as otherwise provided in
the Indenture in the case of consolidation, merger, or transfer of all
the mortgaged and pledged property as an entirety;
15. The Company has all necessary power under statutory
provisions, franchises (which expire at various dates), or permits to
serve the customers in the jurisdictions where it provided electric and
gas services, except in certain instances that are not material to the
Company; and
16. All statements contained in the Registration
Statement and Prospectus under the caption "Description of the First
Mortgage Bonds" purporting to set forth the opinion of counsel or
purporting to be based upon the opinion of counsel correctly set forth
my opinion on said respective matters.
These opinions do not cover titles to easements for water flowage
purposes or rights of way for electric and as transmission and distribution
facilities, steam mains, and telephone lines. However, the Company has the power
of eminent domain in the states in which it operates.
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 upon or assume
responsibility for, and shall not be deemed to have independently verified, the
accuracy and completeness of the statements contained in the Registration
Statement or Prospectus (except as to matters set forth in paragraphs 6, 10 and
16 above) nothing has come to my attention that would lead me to believe that
the Registration Statement at the time it became effective 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 as of the date of the Agreement or at 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 light of the
circumstances under which they were made, not misleading.
In giving my opinion under paragraph 12 above, I have relied upon
examinations of abstracts of titles to properties of the Company, said abstracts
bearing various dates, and nothing has come to my attention which would lead me
to believe that anything has occurred since the dates of the abstracts which
would adversely affect the titles shown on the abstracts.
4
In giving opinions as to conformity to the laws of States other than
Minnesota and as to the franchises and titles to property of the Company, I have
in certain instances relied upon the opinion of other counsel employed or
retained by the Company to render opinions in respect thereto.
Respectfully submitted,
By ___________________________________________
Xxxx X. Xxxxxxx
Vice President and General Counsel
Northern States Power Company
5
EXHIBIT B
OPINIONS OF XXXXX DAY
1. The Company is in good standing under the laws of the State of
Minnesota.
2. The statements made in the Prospectus under the caption
"Description of the First Mortgage Bonds" (other than those statements under the
heading "Security for the First Mortgage Bonds", as to which we express no
opinion) insofar as they purport to constitute summaries of certain terms of the
documents referred to therein, constitute accurate summaries of the terms of
such documents in all material respects.
3. The Registration Statement has become effective under the Act.
The Prospectus Supplement (as defined in the Agreement) has been filed pursuant
to Rule 424(b) under the Act, and no proceedings for a stop order have been
instituted or to the knowledge of such counsel are pending or threatened under
Section 8(d) of the Act; the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended; and, assuming the Minnesota Public Utilities
Commission has issued its order approving the Company's capital structure which
order authorizes the issuance of the First Mortgage Bonds, no further approval
of, authorization, consent, certificate or order of any federal governmental
body is required in connection with the issuance and sale of the First Mortgage
Bonds by the Company to you as provided in the Agreement, except as may be
required by state securities laws;
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States of America,
the laws of the State of New York, and, to the extent set forth therein, the
laws of the States of Minnesota, North Dakota and South Dakota and that such
counsel is not admitted in Minnesota, North Dakota or South Dakota, and that
with respect to the laws of such states it directs you to the opinion of Xxxx X.
Xxxxxxx. Such counsel may state that it does not pass upon legal matters
regarding, and that it expresses no opinion as to, title to the properties of
the Company, franchises and permits of the Company, the description of such
properties in the Indenture, the validity, nature and extent of the lien of the
Indenture, the absence of liens and encumbrances prior to the lien of the
Indenture or the recordation or filing of the Indenture, as to which such
counsel may state its understanding that the Underwriters are relying upon the
aforesaid opinion of Xxxx X. Xxxxxxx.
Such counsel shall also state that:
Such counsel has not independently verified and is not passing upon,
and does not assume any responsibility for, the accuracy, completeness or
fairness, except and to the extent as set forth in the preceding paragraph above
and included in the Prospectus, of the information included in the Prospectus.
Such counsel has participated in the preparation of the Prospectus. From time to
time in connection therewith such counsel has had discussions with officers,
directors and employees of the Company and Xcel Energy Inc., a Minnesota
corporation and the parent company of the Company, with representatives of
Deloitte & Touche LLP, the independent accountants who examined certain of the
financial statements of the Company, and with the Underwriters and counsel to
the Underwriters. Based upon such counsel's participation
and discussions described above, such counsel has no reason to believe that the
Registration Statement, as of its effective date, 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 the
Prospectus, as of the date hereof, includes any untrue statement of a material
fact 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 (except that such counsel expresses no view as to (i) the financial
statements, financial schedules and other financial data included or
incorporated by reference in the Prospectus and (ii) the information referred to
under the caption "Experts" as having been included or incorporated by reference
in the Prospectus and covered by the report of Deloitte & Touche LLP or Xxxxxx
Xxxxxxxx LLP). Such counsel may also state that it has been unable to have any
conversations with the Company's former accountants, Xxxxxx Xxxxxxxx LLP, in
connection with the offering.
2
