Exhibit 1.03
Form of November 20, 0000
XXXXXXXX XXXXXX POWER COMPANY
(a Minnesota corporation)
DEBT SECURITIES
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Northern States Power Company, a 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 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 _________, from the
Company to Norwest Bank Minnesota, National Association, as trustee (the "Debt
Trustee"), as heretofore supplemented and amended by supplemental indentures and
as to be further amended and supplemented by a supplemental indenture relating
to the Debt Securities (such Indenture as so supplemented and amended being
hereinafter referred to as the "Debt 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, Senior Notes and First Mortgage Bonds, which registration statement
has become effective. Such registration statement and prospectus may have been
amended or supplemented from time to time prior to the date of this Agreement
(which date is set forth in Schedule I hereto). Any such amendment or supplement
was filed with the Commission and any such amendment has become effective. The
Company will file
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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 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
Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Debt
Trustee and the trustees for the Senior Notes and Debt Securities 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.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by
reference subsequent to the date of this Agreement will, when they are filed
with the Commission, conform in all material respects to the requirements of
the Exchange Act, and
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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, is an
independent public accountant 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) Each subsidiary of the Company named in Exhibit 21.01 to the
Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases substantial properties or in which the
conduct of its business requires such qualification; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable; and the capital stock of
each such subsidiary owned by the Company, directly or through subsidiaries, is
owned free and clear of any pledge, lien, encumbrance, claim or equity.
(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
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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 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 Debt
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 Debt 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 Debt 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 Debt Indenture which will be substantially in
the form heretofore delivered to you.
(k) The Debt 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 Debt 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 Minnesota Public Utilities Commission has issued its order
approving capital structure which order authorizes the issuance of the Debt
Securities, 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 Debt Securities pursuant to this
Agreement, other than approvals that may be required under state securities
laws.
(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 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
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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 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 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.
(o) 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.
(p) 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 its 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 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 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
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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 Debt
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 second 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 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 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 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 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.
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(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 Forms 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 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.
(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 you), 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
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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 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 Debt Securities 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 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.
(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.
(c) The Representatives 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 Debt 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 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
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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 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 consolidated financial statements and
supplemental 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 of the Commission thereunder, (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available interim financial statements of the Company and its consolidated
subsidiaries, a reading of the minutes of meetings of the Board of Directors,
committees thereof, and of the Shareholders, of the Company and its subsidiaries
since the date of the most recent audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries 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, net income, or earnings per share of Common Stock 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
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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 Debt Securities on the terms and in the manner contemplated by the
Prospectus.
(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 Debt Securities 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
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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) 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 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 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 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,
11
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 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 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, 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 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
12
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).
(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 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 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
13
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 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 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.
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 the "Unpurchased Debt Securities"), the
Representatives may in their discretion arrange for themselves or another 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, or the Company notifies the
Representatives that it has 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
14
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 subsection (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 subsection (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 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 Debt 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, 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 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
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company
15
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 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.
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 Minnesota.
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.
16
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(s)]
By
--------------------------------------------------
For itself or themselves and as Representatives
of the several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
17
SCHEDULE I
Underwriting Agreement dated _____________
Registration Statement No. 33-______
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 _____ 1 and _____ 1 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.
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:
18
SCHEDULE II
Name Amount
----- ------------
.................................................. $
..................................................
..................................................
..................................................
..................................................
.................................................. ------------
Total ..................................................
------------
------------
19
Exhibit A
Form of opinion of Xxxx X. Xxxxxxx
Re: $ principal amount of Debt Securities, 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 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 ,
between you and the Company relating to your purchase of the Debt
Securities, herein called the "Agreement," and have either participated in
the preparation of or examined the Indenture dated ____________ and the
Supplemental Indenture thereto and the Supplemental Indenture dated as of
____________, creating the Debt Securities, all from the Company to Norwest
Bank Minnesota, National Association, as Trustee (which Indenture 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 Debt Securities. 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 Debt 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 and are fully paid
and non-assessable;
20
3. Each Significant Subsidiary, as defined in the Agreement,
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
it owns or leases substantial properties or in which the conduct of its
business requires such qualification; all of the issued and outstanding
capital stock of each subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable; and the capital stock of
each such subsidiary owned by the Company, directly or through
subsidiaries, is owned free and clear of any pledge, lien, encumbrance,
claim or equity;
4. 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;
5. 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
laws affecting enforcement of creditors' rights;
6. 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 Agreement have been duly authorized by the
Company; the statements made under the caption "Description of Debt
Securities" 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 Debt Securities are in due legal form, constitute legal, valid, and
binding obligations of the Company, and (subject to the qualifications
expressed in paragraph 5 above with respect to the enforceability of
certain provisions of the Indenture) are enforceable in accordance with
their terms;
7. The consummation of the transactions contemplated in the
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
governmental body having jurisdiction over the Company or its property;
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 the knowledge of such counsel are
pending or threatened under Section 8(d) of the Act; the Minnesota
Public Utilities Commission has issued its order approving the
Company's
21
capital structure which order authorizes the issuance of the Debt
Securities; 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 Debt Securities 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 Company has good and valid title to all real and fixed
property and leasehold rights which it owns, subject only to: (a) taxes
and assessments not yet delinquent; (b) the lien of the Company's Trust
Indenture dated as of February 1, 1937, as supplemented and amended
(the "First Mortgage Indenture"); (c) as to parts of the Company's
property, certain easements, conditions, restrictions, leases, and
similar encumbrances which do not affect the Company's use of such
property in the usual course of its business, certain minor defects in
titles which are not material, defects in titles to certain properties
which are not essential to the Company's business; and mechanics' lien
claims being contested or not of record or for the satisfaction or
discharge of which adequate provision has been made by the Company
pursuant to the First Mortgage Indenture;
12. 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 service, except in certain instances that are not material to the
Company; and
13. All statements contained in the Registration Statement and
Prospectus under the caption "Description of Debt Securities"
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 gas 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.
22
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 9 and 14
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. 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
23
