EXHIBIT 4.1
8,000,000 PREFERRED SECURITIES
NSP FINANCING I
(A DELAWARE TRUST)
7-7/8% TRUST ORIGINATED PREFERRED SECURITIES (SM) ("TOPrS(SM)")*
(LIQUIDATION AMOUNT OF $25.00 PER PREFERRED SECURITY)
PURCHASE AGREEMENT
January 28, 1997
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, XXXXX & CO.
BEAR, XXXXXXX & CO. INC.
XXXX XXXXXX XXXXXXXX INC.
X.X. XXXXXXX & SONS, INC.
XXXX XXXXXXXX INCORPORATED
XXXXX XXXXXXX INC.
As the Representatives of the several Underwriters
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
NSP Financing I (the "Trust"), a statutory business trust organized under
the Business Trust Act (the "Delaware Act") of the State of Delaware (Chapter
38, Title 12, of the Delaware Code, 12 Del. C. Sections 3801 et seq.), and
Northern States Power Company, a Minnesota corporation (the "Company" and,
together with the Trust, the "Offerors"), confirm their agreement (the
"Agreement") with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), Xxxxxxx, Xxxxx &
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* (sm) "Trust Originated Preferred Securities" and "TOPrS" are service
marks of Xxxxxxx Xxxxx & Co. Inc.
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Co., X.X. Xxxxxxx & Sons, Inc., Bear, Xxxxxxx & Co. Inc., Xxxx Xxxxxxxx
Incorporated, Xxxx Xxxxxx Xxxxxxxx Inc. and Xxxxx Xxxxxxx Inc., as
representatives (in such capacity, collectively, the "Representatives") of
the several Underwriters named in Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), with respect to the sale by the
Trust and the purchase by the Underwriters, acting severally and not jointly,
of the respective number of 7-7/8% Trust Originated Preferred Securities
(liquidation amount of $25 per preferred security) of the Trust ("Preferred
Securities") set forth in said Schedule A, except as may otherwise be
provided in the Pricing Agreement, as hereinafter defined. The Preferred
Securities will be guaranteed by the Company with respect to distributions
and payments upon liquidation, redemption and otherwise (the "Preferred
Securities Guarantee") pursuant to the Preferred Securities Guarantee
Agreement (the "Preferred Securities Guarantee Agreement"), to be dated as of
January 31, 1997, between the Company and Wilmington Trust Company, as
trustee (the "Guarantee Trustee"), and in certain circumstances described in
the Prospectus, the Trust will distribute Subordinated Debt Securities (as
defined herein) to holders of Preferred Securities. The 8,000,000 Preferred
Securities to be purchased by the Underwriters, together with the related
Preferred Securities Guarantee and the Subordinated Debt Securities are
collectively referred to herein as the "Securities."
Prior to the purchase and public offering of the Preferred Securities by
the several Underwriters, the Offerors and the Representatives, acting on
behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Offerors and the Representatives and
shall specify such applicable information as is indicated in Exhibit A
hereto. The offering of the Preferred Securities will be governed by this
Agreement, as supplemented by the Pricing Agreement. From and after the date
of the execution and delivery of the Pricing Agreement, this Agreement shall
be deemed to incorporate the Pricing Agreement.
The Company, and the Trust and NSP Financing II (collectively, the "NSP
Trusts") have filed with the Securities and Exchange Commission (the
"Commission") a shelf registration statement on Form S-3 (No. 333-18917)
covering the registration of securities of the Company and the NSP Trusts,
including the Securities, under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus supplement or
prospectus supplements, and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") and such amendments thereto, if
any, as may have been required to the date hereof, and will file such
additional amendments thereto as may hereafter be required. Promptly after
execution and delivery of this Agreement, the Offerors will either (i)
prepare and file a prospectus in accordance with the provisions of Rule
424(b) ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Offerors
have elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations,
prepare and file a term sheet (a "Term Sheet") in accordance with the
provisions of Rule 434 and 424(b). The information included in such Term
Sheet that was omitted from such registration statement at the time it became
effective but that is deemed part of such registration statement at the time
it became effective is referred to as "Rule 434 Information." Each
prospectus used before such Rule 424(b) prospectus has been filed and any
prospectus that omitted the Rule 434 Information, in each case that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule
434 Information is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration Statement"
and after such filing the term
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"Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the
offering of the Securities is herein called the "Prospectus." If Rule 434 is
relied on, the term "Prospectus" shall refer to the preliminary prospectus
dated January 21, 1997 together with the Term Sheet and all references in
this Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any Term Sheet or
any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the
"1934 Act") which is incorporated by reference in the Registration Statement,
such preliminary prospectus or the Prospectus, as the case may be.
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable
after the Pricing Agreement has been executed and delivered and the
Declaration (as defined herein), the Indenture (as defined herein), and the
Preferred Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The entire proceeds from
the sale of the Preferred Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities
(the "Common Securities," and together with the Preferred Securities, the
"Trust Securities"), as guaranteed by the Company, to the extent set forth in
the Prospectus, with respect to distributions and payments upon liquidation
and redemption (the "Common Securities Guarantee" and together with the
Preferred Securities Guarantee, the "Guarantees") pursuant to the Common
Securities Guarantee Agreement (the "Common Securities Guarantee Agreement"
and, together with the Preferred Securities Guarantee Agreement, the
"Guarantee Agreements"), to be dated as of January 31, 1997, between the
Company and the Guarantee Trustee, as Trustee, and will be used by the Trust
to purchase $206,190,000 of 7-7/8% subordinated deferrable interest debt
securities (the "Subordinated Debt Securities") issued by the Company. The
Preferred Securities and the Common Securities will be issued pursuant to the
amended and restated declaration of trust of the Trust, to be dated as of
January 31, 1997, (the "Declaration"), among the Company, as Sponsor, Xxxxxx
X. XxXxxxxx and Xxxx Xxxxxx (the "Regular Trustees"), Wilmington Trust
Company, as institutional trustee (the "Institutional Trustee"), and
Wilmington Trust Company, as Delaware trustee (the "Delaware Trustee," and,
together with the Institutional Trustee and the Regular Trustees, the
"Trustees"), and the holders from time to time of undivided beneficial
interests in the assets of the Trust. The Subordinated Debt Securities will
be issued pursuant to an indenture, to be dated as of January 30, 1997, (the
"Base Indenture"), between the Company and Norwest Bank Minnesota, National
Association, as trustee (the "Debt Trustee"), as supplemented by a supplement
to the Base Indenture, to be dated as of January 31, 1997 (the "Supplemental
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Debt
Trustee.
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SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors represent and warrant to each Underwriter as of the
date hereof and as of the date of the Pricing Agreement (such later date
being hereinafter referred to as the "Representation Date") and as of the
Closing Time (as hereinafter defined) that:
(i) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Offerors, threatened by the
Commission.
(ii) The Company and the NSP Trusts meet, and at the respective
times of the commencement and consummation of the Offering of the
Securities will meet, the requirements for the use of Form S-3 under
the 1933 Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act. At
the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on
Form 10-K with the Commission) became effective and at each
Representation Date, the Registration Statement, any Rule 462
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations") and did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Prospectus
and at the Closing Time, the Prospectus and any amendments and
supplements thereto did not and will not include an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the
Offerors elect to rely upon Rule 434 of the 1933 Act Regulations,
the Offerors will comply with the requirements of Rule 434.
Notwithstanding the foregoing, the representations and warranties in
this subsection shall not apply to (A) statements in or omissions
from the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the Offerors in
writing by any Underwriter through Xxxxxxx Xxxxx expressly for use
in the Registration Statement or the Prospectus or (B) that part of
the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the 1939 Act.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with
the offering of Securities will, at the time of such delivery, be
identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(iii) 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
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1934 Act and the rules and regulations of the Commission thereunder
(the "1934 Act Regulations") 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 1934 Act and the 1934
Act Regulations 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.
(iv) Deloitte & Touche LLP and Price Waterhouse LLP, which audited
certain of the financial statements incorporated by reference in the
Registration Statement, are each independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(v) 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. The unaudited pro forma financial
information included or incorporated by reference in the Registration
Statement and the Prospectus complies in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation
S-X and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of such information. The
selected financial information and the summary financial data
included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of
the audited financial statements incorporated by reference in the
Registration Statement.
(vi) 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, the Company has all material licenses and
approvals required at the date hereof to conduct its business.
(vii) 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.
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(viii) 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; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, 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
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.
(ix) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act with the
power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and to enter
into and perform its obligations under this Agreement, the Pricing
Agreement, the Preferred Securities, the Common Securities and the
Declaration; the Trust is duly qualified to transact business as a
foreign company and is in good standing in each jurisdiction in
which such qualification is necessary, except where the failure to
so qualify or be in good standing would not have a material adverse
effect on the Trust; the Trust is not a party to or otherwise bound
by any agreement other than those described in the Prospectus; the
Trust is and will, under current law, be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(x) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and Prospectus, will be validly issued and will represent
undivided beneficial interests in the assets of the Trust and will
conform in all material respects to the description thereof
contained in the Prospectus; the issuance of the Common Securities
is not subject to preemptive or other similar rights; and at the
Closing Time all of the issued and outstanding Common Securities of
the Trust will be directly owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(xi) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by the Offerors.
(xii) The Declaration has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by
the Company and the Trustees, and assuming due authorization,
execution and delivery of the Declaration by the Institutional
Trustee and the Delaware Trustee, the Declaration will, at the
Closing Time, be a valid and binding obligation of the Company and
the Regular Trustees in accordance with its terms, except to the
extent that enforcement thereof may be limited
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by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the "Bankruptcy
Exceptions") and will conform in all material respects to the
description thereof contained in the Prospectus.
(xiii) Each of the Guarantees and the Guarantee Agreements has been
duly authorized by the Company and, when validly executed and
delivered by the Company, and, in the case of the Preferred
Securities Guarantee and the Preferred Securities Guarantee
Agreement, assuming due authorization, execution and delivery of the
Preferred Securities Guarantee by the Guarantee Trustee, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except to the
extent that enforcement thereof may be limited by the Bankruptcy
Exceptions, and each of the Guarantees and the Guarantee Agreements
will conform in all material respects to the description thereof
contained in the Prospectus.
(xiv) The Preferred Securities have been duly authorized for
issuance and sale to the Underwriters and, when issued and delivered
against payment therefor as provided herein, will be validly issued
and fully paid and non-assessable undivided beneficial interests in
the assets of the Trust and will conform in all material respects
to the description thereof contained in the Prospectus; the issuance
of the Preferred Securities is not subject to preemptive or other
similar rights.
(xv) The Indenture has been duly authorized and qualified under the
1939 Act and, at the Closing Time, will have been duly executed and
delivered and will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms
except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions; the Indenture will conform in all material
respects to the description thereof contained in the Prospectus.
(xvi) The Subordinated Debt Securities have been duly authorized by
the Company and, at the Closing Time, will have been duly executed
by the Company and, when authenticated in the manner provided for in
the Indenture and delivered against payment therefor as described in
the Prospectus, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms except to the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions, and will be in the form contemplated by,
and entitled to the benefits of, the Indenture and will conform in
all material respects to the description thereof in the Prospectus.
(xvii) Each of the Regular Trustees of the Trust is an employee of
the Company and has been duly authorized by the Company to execute
and deliver the Declaration.
(xviii) Neither the Company nor any of its Significant Subsidiaries
is in violation of its charter or by-laws or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or any other instrument to
which the Company or any of such Significant Subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of such Significant
Subsidiaries is subject, or in violation of any applicable law,
administrative
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regulation or administrative or court order or decree, which
violation or default would, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(xix) The Trust is not in violation of the Declaration or its
certificate of trust filed with the State of Delaware on
December 23, 1996 (the "Certificate of Trust"); none of the
execution, delivery and performance of this Agreement, the Pricing
Agreement, the Declaration, the Preferred Securities, the Common
Securities, the Indenture, the Subordinated Debt Securities, the
Guarantee Agreements and the Guarantees and the consummation of the
transactions contemplated herein and therein and compliance by the
Offerors with their respective obligations hereunder and thereunder
did or will result in a breach of any of the terms or provisions of,
or constitute a default under or require the consent of any party
under the Certificate of Trust of the Trust or the Articles of
Incorporation or by-laws of the Company and its subsidiaries, any
contract, indenture, mortgage, note, lease, agreement or other
instrument to which either the Trust, the Company or any of its
subsidiaries is a party or by which any of them may be bound, any
applicable law, rule or regulation or any judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Trust, the Company or any of
its subsidiaries or any of their respective properties or assets, or
did or will result in the creation or imposition of any lien on the
properties or assets of the Trust, the Company or any of its
subsidiaries.
(xx) The Minnesota Public Utilities Commission has issued its order
approving the Company's capital structure which order authorizes the
issuance of the Subordinated Debt Securities and Guarantees and no
other approval of any regulatory public body, state or federal, is,
or will be at the Closing Time, necessary in connection with the
issuance and the sale of the Securities pursuant to this Agreement,
other than approvals that may be required under state securities
laws.
(xxi) The Company has good and valid title to all real and fixed
property and leasehold rights purported to be owned by it subject
only to: (a) taxes and assessments not yet delinquent; (b) the lien
of the Company's 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, 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 (d) 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, 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
Company.
(xxii) Other than as set forth or contemplated in the Prospectus,
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
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subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(xxiii) Neither the Trust nor the Company is, and following
consummation of the transactions contemplated hereby and the
application of the proceeds therefrom in the manner set forth in the
Prospectus will be, 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.
(xiv) Except as set forth in the Prospectus, 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.
(b) Any certificate signed by any officer of the Company or a Trustee
of the Trust and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or
the Trust, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter, severally and not
jointly, agrees to purchase from the Trust, at the price per security set
forth in the Pricing Agreement, the number of Preferred Securities set forth
in Schedule A hereto opposite the name of such Underwriter, plus any
additional number of Preferred Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Securities will be used to purchase the Subordinated Debt Securities of the
Company, the Company hereby agrees to pay to the Representatives, for the
accounts of the several Underwriters, a commission per security set forth in
the Pricing Agreement as compensation to the Underwriters for their
commitments under this Agreement.
(c) Delivery of certificates for the Securities shall be made at the
offices of the Underwriters in New York, and payment of the purchase price
for the Securities shall be made at the offices of the Company or
at such other place as shall be agreed upon by the Underwriters and the
Offerors, at 10:00 a.m. (New York time) on the third business day after
execution of the Pricing Agreement (or, if pricing of the Securities occurs
after 4:30 p.m. Eastern time, on the fourth full business day thereafter)),
or such other time not later than ten business days after such date as shall
be agreed upon by the Underwriters and the Offerors (such time and date of
payment and delivery being herein called the "Closing Time"). Payment for
the Preferred Securities purchased by the Underwriters shall be made to the
Trust by wire transfer of immediately available funds, payable to the Trust,
against delivery
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to the respective accounts of the Underwriters of certificates for the
Preferred Securities to be purchased by it. Certificates for the Preferred
Securities shall be in such denominations and registered in such names as the
Underwriters may request in writing at least two full business days before
the Closing Time. Xxxxxxx Xxxxx, individually and not as representative of
the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Preferred Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
At the Closing Time, the Company will pay, or cause to be paid, the
commission payable at such time to the Underwriters under Section 2(b) hereof
by wire transfer of immediately available funds to a bank account designated
by Xxxxxxx Xxxxx. The certificates for the Preferred Securities will be made
available for examination and packaging by the Underwriters no later than
10:00 a.m. (New York City time) on the last business day prior to the Closing
Time.
SECTION 3. COVENANTS OF THE OFFERORS. The Offerors agree with each
Underwriter as follows:
(a) Promptly following the execution of this Agreement, the Offerors
will cause the Prospectus, including as a part thereof a prospectus
supplement relating to the Securities, to be filed with the Commission
pursuant to Rule 424 of the 1933 Act Regulations and the Offerors will
promptly advise the Underwriters when such filing has been made. Prior to
the filing, the Offerors will cooperate with the Underwriters in the
preparation of such prospectus supplement to assure that the Underwriters
have no reasonable objection to the form or content thereof when filed or
mailed.
(b) The Offerors will comply with the requirements of Rule 430A of
the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Underwriters immediately, and confirm the
notice in writing, (i) of the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment to
the Prospectus, (ii) the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose and (v) of the issuance by any state
securities commission or other regulatory authority of any order suspending
the qualification or the exemption from qualification of the Securities under
state securities or Blue Sky laws or the initiation or threatening of any
proceeding for such purpose. The Offerors will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) The Company will give the Underwriters notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment and any filing under Rule 462(b) of the 1933 Act
Regulations) any Term Sheet or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise; will furnish the Underwriters with copies of any such
Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or
revision a reasonable amount of time prior to such proposed filing or use, as
the case may be; and will not file any such Rule 462(b) Registration
Statement, Term Sheet, amendment, supplement or revision to which the
Underwriters or counsel for the Underwriters shall object.
(d) The Company will deliver to Xxxxxxx Xxxxx and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto
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(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts and will also
deliver to Xxxxxxx Xxxxx, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. If applicable, the copies
of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Registration Statement and the Prospectus. If at any
time when the Prospectus is required by the 1933 Act or the 1934 Act to be
delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or for the Offerors, to amend the
Registration Statement in order that the Registration Statement will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in the opinion
of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements
of the 1933 Act or the 1933 Act Regulations, the Offerors will promptly
prepare and file with the Commission, subject to Section 3(b), such amendment
or supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Offerors will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(g) The Offerors will use their best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic
or foreign) as Xxxxxxx Xxxxx may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be required in connection with distribution of the
Securities.
(h) The Company will, on behalf of the Trust, make generally
available to the Trust's securityholders as soon as practicable, but not
later than 45 days (or 90 days, in the case of a period that is also the
Company's fiscal year) after the close of the period covered thereby, a
consolidated earnings statement of the Company (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month
period beginning not later than the first day of the Company's
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fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(i) The Trust will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(j) If the Offerors elect to rely upon Rule 462(b), the Offerors
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with
Rule 111 of the 1933 Act Regulations by the earlier of (i) 10:00 p.m. Eastern
time on the date of the Pricing Agreement and (ii) the time confirmations are
sent or given, as specified by Rule 462(b)(2).
(k) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within
the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Offerors will use their best efforts to effect the listing of
the Preferred Securities (including the Preferred Securities Guarantee with
respect thereto) on the New York Stock Exchange and to cause the Securities
to be registered under the 1934 Act. If the Preferred Securities are
exchanged for Subordinated Debt Securities, the Company will use its best
efforts to effect the listing of the Subordinated Debt Securities on the
exchange on which the Preferred Securities were then listed and to cause the
Subordinated Debt Securities to be registered under the 1934 Act.
(m) Until March 2, 1997, neither the Trust nor the Company will,
without the prior written consent of the Underwriters, (i) directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, or enter into any agreement to sell, any Preferred
Securities, any security convertible into or exchangeable or exercisable for
Preferred Securities, or any equity securities substantially similar to the
Preferred Securities or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap
or transaction described in clause (i) or (ii) above is settled by delivery
of Common Stock or such other securities in cash or otherwise (except the
Subordinated Debt Securities and the Preferred Securities issued pursuant to
this Agreement).
(n) During a period of three years from the Closing Time, the Company
will make generally available to the Underwriters copies of all reports and
other communications (financial or other) mailed to stockholders, and to
deliver to the Underwriters promptly after they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange on which any class of securities of the
Company is listed; and shall furnish such additional information concerning
the business and financial condition of the Company as the Underwriters may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and the
Pricing Agreement, including, without limitation, expenses related to the
following, if incurred: (i) the preparation, delivery, printing and filing
of the Registration Statement and Prospectus as originally filed (including
financial statements and exhibits) and of each amendment thereto, (ii) the
printing and delivery to the Underwriters of this Agreement, the Pricing
Agreement, any Agreement among Underwriters and such other documents as
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may be required in connection with the offering, purchase, sale and delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Preferred Securities, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors or agents (including
the transfer agents and registrars) as well as fees and disbursements of the
Trustees and any Depository, and their respective counsel, (v) the
qualification of the Securities under state securities laws in accordance
with the provisions of Section 3(g), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky Survey and any Legal
Investment Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each
amendment thereto, of each preliminary prospectus, any Term Sheet and of the
Prospectus and any amendments or supplements thereto, (vii) the printing and
delivery to the Underwriters of copies of any Blue Sky Survey and any Legal
Investment Survey, (viii) any fees payable in connection with the rating of
the Preferred Securities by nationally recognized statistical rating
organizations; (ix) the filing fees incident to, and the fees and
disbursements of counsel to the Underwriters in connection with, the review,
if any, by the National Association of Securities Dealers, Inc. (the "NASD")
of the terms of the sale of the Preferred Securities; (x) any fees payable to
the Commission; and (xi) the fees and expenses incurred in connection with
the listing of the Preferred Securities and, if applicable, the Subordinated
Debt Securities on the New York Stock Exchange.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of Xxxxxxx, Carton & Xxxxxxx, counsel
for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase and pay for the Preferred Securities pursuant
to this Agreement are subject to the accuracy of the representations and
warranties of the Offerors herein contained or in certificates of any officer
of the Company or any subsidiary or the trustees of the Trust delivered
pursuant to the provisions hereof, to the performance by the Offerors of
their obligations hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, shall have become effective under the 1933 Act no
later than 5:30 p.m., New York City time, on the date hereof, and on the date
hereof and at the Closing Time, no stop order suspending the effectiveness of
the Registration Statement or any part hereof shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the satisfaction of counsel to
the Underwriters. A prospectus containing information relating to the
description of the Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable or, if the Company has
elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 Information shall have been filed with the Commission
in accordance with Rule 424(b)(7).
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxx X.
Xxxxxxx, Esq., Vice President, General Counsel and Corporate Secretary of the
Company, in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
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(i) The Company is a legally existing corporation under the laws of
the State of Minnesota, North Dakota or South Dakota; 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; and has corporate power, right and
authority to own securities of its subsidiaries.
(ii) 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.
(iii) Each Significant Subsidiary 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 indirectly or through subsidiaries,
is owned free and clear of any pledge, lien, encumbrance, claim or
equity.
(iv) The Trust is not required to be qualified and in good standing as
a foreign company in Minnesota, South Dakota or North Dakota, except
to the extent that the failure to so qualify or be in good standing
would not have a material adverse effect on the Trust; and the Trust
is not a party to or otherwise bound by any agreement other than those
described in the Prospectus.
(v) The Declaration has been duly authorized, executed and delivered
by the Company and the trustees and is a valid and binding obligation
of the Company, enforceable against the Company and each of the
Regular Trustees in accordance with its terms, except as enforcement
thereof may be limited by the Bankruptcy Exceptions; and the
Declaration has been duly qualified under the 1939 Act.
(vi) The Registration Statement has become effective under the 1933
Act. The prospectus supplement has been filed pursuant to Rule 424(b)
under the 1933 Act, and no proceedings for a stop order have been
instituted or are pending or to the knowledge of such counsel
threatened under Section 8(d) of the 1933 Act; the Minnesota Public
Utilities Commission has issued its order approving the Company's
capital structure which order authorizes the issuance of the
Securities 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
Securities to you as provided in the Agreement, except as may be
required by state securities laws.
(vii) 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 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations; and the
Declaration, the Indenture, the Preferred Securities Guarantee
Agreement and the Statements of Eligibility on Forms T-1 with respect
to each of the Institutional Trustee, the Debt
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Trustee, and the Guarantee Trustee filed with the Commission as part of
the Registration Statement complied as to form in all material respects
with the requirements of the 1939 Act and the 1939 Act Regulations.
(viii) Each of the documents incorporated by reference in the
Registration Statement or the Prospectus at the time they were filed
or last amended (other than the financial statements and the notes
thereto, the financial schedules, and any other financial or
statistical data included or incorporated by reference therein, as to
which such counsel need express no belief) complied as to form in all
material respects with the requirements of the 1934 Act, and the 1934
Act Regulations, as applicable; and such counsel has no reason to
believe that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in the case
of a registration statement which became effective under the 1933 Act,
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, and in the case of other documents which were
filed under the 1934 Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein not misleading.
(ix) The Company and each of the NSP Trusts meet the registrant
requirements for use of Form S-3 under the 1933 Act Regulations.
(x) The Common Securities, the Preferred Securities, the Subordinated
Debt Securities, each of the Guarantees, the Declaration, the
Indenture and each of the Guarantee Agreements conform in all material
respects to the descriptions thereof contained in the Prospectus.
(xi) The information in the Prospectus under the captions "NSP",
"Proposed Merger," "NSP Financing I", "Risk Factors", "Use of
Proceeds", "Capitalization", "Description of the Preferred
Securities", "Description of the Guarantee", "Description of the
Junior Subordinated Debentures", "Effect of Obligations under the
Junior Subordinated Debentures and the Guarantee", "Description of
Subordinated Debt Securities", and "Description of the Preferred
Securities Guarantees" to the extent that they involve matters of law,
summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(xii) All of the issued and outstanding Common Securities of the Trust
are directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
(xiii) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by each of the Trust and the
Company.
(xiv) Each of the Guarantees and Guarantee Agreements has been duly
authorized, executed and delivered by the Company; the Preferred
Securities Guarantee and the Preferred Securities Guarantee Agreement,
assuming they are duly authorized, executed and delivered by the
Guarantee Trustee, constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except to the
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extent that enforcement thereof may be limited by Bankruptcy Exceptions;
and the Preferred Securities Guarantee and the Preferred Securities
Guarantee Agreement have been duly qualified under the 1939 Act.
(xv) The Indenture has been duly executed and delivered by the Company
and, assuming due authorization, execution, and delivery thereof by
the Debt Trustee, is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions; and the Indenture has been duly qualified under
the 1939 Act.
(xvi) The Subordinated Debt Securities are in the form contemplated by
the Indenture, have been duly authorized, executed and delivered by
the Company and, when authenticated by the Debt Trustee in the manner
provided for in the Indenture and delivered against payment therefor
as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions.
(xvii) The execution, delivery and performance of this Agreement, the
Pricing Agreement, the Declaration, the Preferred Securities, the
Common Securities, the Indenture, the Subordinated Debt Securities,
the Guarantee Agreements, and the Guarantees and the consummation of
the transactions contemplated herein and therein, and the compliance
by each of the Offerors with their respective obligations hereunder
and thereunder do not and will not conflict with, result in a breach
of, or constitute a default under or require the consent of any party
under the Certificate of Trust of the Trustee or the Restated Articles
of Incorporation or by-laws of the Company, or any contract,
indenture, mortgage, agreement, note, lease or other instrument known
to such counsel to which the Trust or the Company is a party or by
which any of them may be bound, or, to the best of such counsel's
knowledge, any applicable law, rule or regulation, or any judgment,
order or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the Trust, the
Company or any of its subsidiaries or any of their respective
properties or assets or did or will result in the creation or
imposition of any lien on the properties or assets of the Trust, the
Company or any of its subsidiaries.
(xviii) Such counsel does 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.
(xix) The Company has good and valid title to all real and fixed
property and leasehold rights purported to be owned by it subject only
to: (a) taxes and assessments not yet delinquent; (b) the lien of the
first mortgage indenture; (c) as to part 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 (d)
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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 Indenture.
(xx) 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.
(xxi) None of the Trust or the Company or any of its subsidiaries is,
and following consummation of the transactions contemplated hereby and
the application of the proceeds therefrom in the manner set forth in
the Prospectus will be, an "investment company" or under the "control"
of an "investment company" as such terms are defined.
Moreover, such counsel shall confirm that nothing has come to his attention
that would lead him 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 Closing Time 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.
The foregoing opinions may be limited to the laws of Delaware, Minnesota
and the federal law of the United States. In giving such opinion, such
counsel may rely, as to matters of Delaware Law, upon the opinion of
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Offerors, in which
case the opinion shall state that such counsel believes that you and such
counsel are entitled to so rely.
(2) The favorable opinion, dated as of Closing Time, of Xxxxxxxx, Xxxxxx
& Finger, special counsel to the Offerors, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and has the
business trust power and authority to conduct its business as
described in the Registration Statement and the Prospectus.
(ii) Assuming that the Declaration has been duly authorized, executed
and delivered by the Company and the Trustees, the Declaration
constitutes a valid and binding obligation of the Trustees and the
Company and is enforceable against the Trustees and the Company in
accordance with its terms, except that to the extent enforceability
thereof may be limited by the Bankruptcy Exceptions.
(iii) Under the Delaware Act and the Declaration, the Trust has the
power and authority to (i) execute and deliver, and to perform its
obligations under, this Agreement and the Pricing Agreement and (ii)
issue, and perform its obligations under, the Trust Securities.
(iv) The execution and delivery by the Trust of this Agreement and the
Pricing Agreement, and the performance by the Trust of its obligations
hereunder and under the
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Pricing Agreement, have been duly authorized by all necessary action on
the part of the Trust.
(v) The Preferred Securities have been duly authorized by the
Declaration and, when executed by the Trust and the Institutional
Trustee in accordance with the Declaration and delivered against
payment therefore in accordance with the terms of this Agreement, will
be validly issued and, subject to the qualifications hereinafter
expressed in this paragraph (v), fully paid and nonassessable
undivided beneficial interests in the assets of the Trust; the holders
of the Preferred Securities, as beneficial owners of the Trust, will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; said counsel may
note that the holders of the Preferred Securities may be obligated to
make payments as set forth in the Declaration.
(vi) The Common Securities have been duly authorized by the
Declaration and, when issued, executed and authenticated in accordance
with the terms of the Declaration, and delivered and paid for as set
forth in the Registration Statement, will be validly issued, undivided
beneficial interests in the assets of the Trust.
(vii) Under the Delaware Act and the Declaration, the issuance of the
Trust Securities is not subject to preemptive or other similar rights.
(viii) The issuance and sale by the Trust of the Preferred Securities
and Common Securities; the execution, delivery and performance by the
Trust of this Agreement and the Pricing Agreement; the consummation of
the transactions contemplated herein; and compliance by the Trust with
its obligations hereunder will not violate any of the provisions of
the Certificate of Trust or Declaration or any applicable Delaware law
or administrative regulation.
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(ix) None of the execution and delivery by the Trust of, or the
performance by the Trust of its obligations under, this Agreement, the
issuance and sale of the Preferred Securities by the Trust in
accordance with the terms of this Agreement and the Pricing Agreement,
the execution, delivery and performance by the Trust of this Agreement
and the Pricing Agreement and the consummation of the other
transactions contemplated thereby, will contravene any provisions of
applicable Delaware law or administrative regulations or the
Certificate of Trust or the Declaration.
(3) The favorable opinion, dated as of the Closing Time, of Xxxxxxxx,
Xxxxxx & Finger, counsel to Wilmington Trust Company, as Institutional
Trustee under the Declaration, and Guarantee Trustee under the Preferred
Securities Guarantee Agreements, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) Wilmington Trust Company is a Delaware banking corporation with
trust powers, duly organized, validly existing and in good standing
under the laws of the State of Delaware with all necessary power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of the Declaration and the Preferred
Securities Guarantee Agreement.
(ii) The execution, delivery and performance by the Institutional
Trustee of the Declaration and the execution, delivery and performance
by the Guarantee Trustee of the Preferred Securities Guarantee
Agreement have been duly authorized by all necessary corporation
action on the part of the Institutional Trustee and the Guarantee
Trustee, respectively. The Declaration and the Preferred Securities
Guarantee Agreement have been duly executed and delivered by the
Institutional Trustee and the Guarantee Trustee, respectively.
(iii) The execution, delivery and performance of the Declaration and
the Preferred Securities Guarantee Agreement by the Institutional
Trustee and the Guarantee Trustee, respectively, do not conflict with
or constitute a breach of the Articles of Organization or Bylaws of
the Institutional Trustee and the Guarantee Trustee, respectively.
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(iv) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for
the execution, delivery or performance by the Institutional Trustee
and the Guarantee Trustee of the Declaration and the Preferred
Securities Guarantee Agreement.
(4) The opinion of Xxxxxxx, Carton & Xxxxxxx, special tax counsel to the
Offerors, generally to the effect that (i) under current law, for United
States federal income tax purposes the Subordinated Debt Securities will
constitute indebtedness of the Company; (ii) under current law, the Trust
will be classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation; and (iii) the
discussion set forth in the Prospectus under the heading "United States
Federal Income Taxation" is a fair and accurate summary of the matters
addressed therein, based upon current law and the assumptions stated or
referred to therein. Such opinion may be conditioned on, among other things,
the initial and continuing accuracy of the facts, financial and other
information, covenants and representations set forth in certificates of
officers of the Company and the Trust and other documents deemed necessary
for such opinion.
(5) The favorable opinion, dated as of the Closing Time, of Xxxxxxx,
Carton & Xxxxxxx, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters with respect to the incorporation and legal
existence of the Company, the Preferred Securities, the Indenture, the
Preferred Securities Guarantee Agreement, this Agreement, the Pricing
Agreement, the Registration Statement, the Prospectus and other related
matters as the Representatives may require. In giving its opinion, Xxxxxxx,
Xxxxxx & Xxxxxxx may rely as to certain matters of Minnesota law and Delaware
law upon the opinions of Xxxx X. Xxxxxxx, and Xxxxxxxx, Xxxxxx & Finger,
special Delaware counsel for the Offerors, which shall be delivered in
accordance with Section 5(b)(1) and 5(b)(2) hereto.
(c) Between the date of this Agreement and prior to the Closing Time, no
material adverse change shall have occurred in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust or the Company and its subsidiaries considered as one enterprise,
whether or not in the ordinary course of business.
(d) At the Closing Time, the Representatives shall have received a
certificate of the President or a Vice-President of the Company and of the
Chief Financial Officer or Chief Accounting Officer of the Company and a
certificate of a Regular Trustee of the Trust, and dated as of Closing Time,
to the effect that (i) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust or the Company and its subsidiaries
considered as one enterprise, whether or not in the ordinary course of
business, (ii) the representations and warranties in Section 1 hereof are
true and correct as though expressly made at and as of the Closing Time,
(iii) the Trust and the Company have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(e) The Representatives shall have received letters from the Company's
independent public accountants (dated the date of this Agreement and Closing
Time, respectively, and in form and substance satisfactory to the
Representatives) advising that (i) they are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations; (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 1934 Act comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations; (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 the shareholders, of the Company and its subsidiaries
since the date of the most recent audited financial statements included or
-20-
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 Act and the 1934 Act Regulations
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, 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 explanation is not deemed
necessary by the Representatives; (iv) they have carried out specified
procedures performed for the purpose of comparing certain specified financial
information and percentages (which is limited to financial information
derived from general accounting records of the Company) included or
incorporated by reference in the Registration Statement and Prospectus with
indicated amounts in the financial statements or accounting records of the
Company and (excluding any questions of legal interpretation) have found such
information and percentages to be in agreement with the relevant accounting
and financial information of the Company referred to in such letter in the
description of the procedures performed by them and (v) on the basis of a
reading of the unaudited pro forma financial information included or
incorporated by reference in the Registration Statement and the Prospectus,
carrying out certain specified procedures that would not necessarily reveal
matters of significance with respect to the comments set forth in this clause
(v), inquiries of certain officials of the Company who have responsibility
for financial and accounting matters and proving the arithmetic accuracy of
the application to the pro forma adjustments to the historical amounts in the
unaudited pro forma financial information, nothing came to their attention
that caused them to believe that the unaudited pro forma financial
information does not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such information.
(f) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities
as herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters.
(g) At the Closing Time, the Preferred Securities shall be rated in one
of the four highest rating categories for long term debt ("Investment Grade")
by any nationally recognized statistical rating agency, and the Trust shall
have delivered to the Representatives a letter, dated the Closing Time, from
such nationally recognized statistical rating agency, or other evidence
satisfactory to the Representatives,
-21-
confirming that the Preferred Securities have Investment Grade ratings; and
there shall not have occurred any decrease in the ratings of any securities
of the Company or of the Preferred Securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the 1933 Act Regulations) and such organization shall not have publicly
announced that it has under surveillance or review its rating of any of the
securities of the Company or of the Preferred Securities.
(h) At the Closing Time, the Preferred Securities shall have been
approved for listing on the New York Stock Exchange upon notice of issuance.
(i) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Company at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4, and except that
Sections 1, 6, 7 and 8 shall survive and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) The Offerors agree to jointly and severally indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, provided that (subject
to Section 6(d) below) any such settlement is effected with the
written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
-22-
provided, however, that the foregoing indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to the
Offerors by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, the Trust and each of its Trustees who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Offerors by such Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Offerors. An indemnifying party
may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of
-23-
such settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Offerors on the one hand,
and the Underwriters, on the other hand, from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Offerors on the one hand, and the
Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by Offerors on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Offerors and the total
underwriting discount received by the Underwriters, in each case as set forth
on the cover of the Prospectus, or, if Rule 434 is used, the corresponding
location on the Term Sheet, bear to the aggregate initial public offering
price of such Securities as set forth on such cover.
The relative fault of the Offerors, on the one hand, and the
Underwriters, on the other hand, 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 Offerors or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the 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.
-24-
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company and each
Trustee of the Trust who signed the Registration Statement, and each person,
if any, who controls the Company and the Trust within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as the Offerors. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number
or aggregate principal amount, as the case may be, of Preferred Securities
set forth opposite their respective names in Schedule A to this Agreement,
and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers
of the Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of and payment for the Preferred Securities to the
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial
markets in the United States, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Preferred
Securities or to enforce contracts for the sale of the Preferred Securities,
or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such
system or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal, Minnesota or New York
authorities.
(b) If this Agreement and the Pricing Agreement are terminated pursuant
to this Section 9, such termination shall be without liability of any party
to any other party except as provided in Section 4, and provided, further,
that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at the Closing Time, as the case may be, to purchase
the Securities which it or they are
-25-
obligated to purchase under this Agreement and the Pricing Agreement (the
"Defaulted Securities"), then Xxxxxxx Xxxxx shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, Xxxxxxx Xxxxx shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the total number or aggregate
principal amount, as the case may be, of Preferred Securities, the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the total number or aggregate principal
amount, as the case may be, of Preferred Securities to be purchased on such
date pursuant to this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either Xxxxxxx Xxxxx or the Company shall have the right
to postpone the Closing Time for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxxx Xxxxx at Xxxxxxx Xxxxx World
Headquarters, World Financial Center, North Tower, New York, New York 10281,
Attention: Xxxxxxx X. Xxxxxxx, Managing Director, with a copy to Xxxxxxx,
Carton & Xxxxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxx, Esq.; notices to the Company shall be directed to it at
Northern States Power Company, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: Secretary.
SECTION 12. PARTIES. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Offerors and the
Underwriters and their respective successors. Nothing expressed or mentioned
in this Agreement or the Pricing Agreement is intended or shall be construed
to give any person, firm or corporation, other than the Underwriters and the
Offerors and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or the Pricing Agreement or any provision herein
or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the parties hereto and thereto and their respective
successors and legal representatives, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF MINNESOTA APPLICABLE TO AGREEMENTS MADE AND TO BE
-26-
PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER TO TIME UNLESS
OTHERWISE INDICATED.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
-27-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, shall become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
NORTHERN STATES POWER COMPANY
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Vice President and Chief
Financial Officer
NSP FINANCING I
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Regular Trustee
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX &
XXXXX INCORPORATED
XXXXXXX, XXXXX & CO.
X.X. XXXXXXX & SONS, INC.
BEAR, XXXXXXX & CO. INC.
XXXX XXXXXXXX INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
XXXXX XXXXXXX INC.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX &
XXXXX INCORPORATED
By: /s/ Xxxxx Xxxxx Xxxxxxxxxx
-----------------------------------
Authorized Signatory
For themselves and as the Representatives of the
several Underwriters named in Schedule A hereto.
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SCHEDULE A
Name of Underwriter Number of Shares
------------------- ----------------
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 1,100,000
Xxxxxxx, Xxxxx & Co. 1,000,000
Bear, Xxxxxxx & Co. Inc. 1,000,000
Xxxx Xxxxxx Xxxxxxxx Inc. 1,000,000
X.X. Xxxxxxx & Sons, Inc. 1,000,000
Xxxx Xxxxxxxx Incorporated 1,000,000
Xxxxx Xxxxxxx Inc. 1,000,000
Xxxxxx X. Xxxxx & Co. Incorporated 100,000
Alex. Brown & Sons Incorporation 100,000
Xxxxx & Company 100,000
EVEREN Securities, Inc. 100,000
The Ohio Company 100,000
Prudential Securities Incorporated 100,000
Xxxxxx Xxxxxxx Incorporated 100,000
Wheat, First Securities, Inc. 100,000
Total 8,000,000
----------
----------
-29-
EXHIBIT A
8,000,000 Preferred Securities
NSP FINANCING I
(a Delaware business trust)
7-7/8% Trust Originated Preferred Securities (sm) ("TOPrS (sm)")*
(Liquidation Amount of $25 Per Security)
PRICING AGREEMENT
January 28, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Incorporated as
Representative of the several
Underwriters named in the within-
mentioned Purchase Agreement
Xxxxxxx Xxxxx World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated January 28, 1997 (the
"Purchase Agreement"), relating to the purchase by the several Underwriters
named in Schedule A thereto, for whom Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Xxxxx & Co., Bear, Xxxxxxx &
Co. Inc., Xxxx Xxxxxx Xxxxxxxx Inc., X.X. Xxxxxxx & Sons, Inc., Xxxx
Xxxxxxxx Incorporated and Xxxxx Xxxxxxx Inc. are acting as representatives
(the "Representatives"), of the above 7-7/8% Trust Originated Preferred
Securities (the "Preferred Securities"), of NSP Financing I, a Delaware
business trust (the "Trust").
Pursuant to Section 2 of the Purchase Agreement, the Trust and Northern
States Power Company (the "Company"), a Minnesota corporation, agree with
each Underwriter as follows:
1. The initial public offering price per security for the Preferred
Securities, determined as provided in said Section 2, shall be $25.00.
2. The purchase price per security for the Preferred Securities to be
paid by the several Underwriters shall be $25.00, being an amount equal to
the initial public offering price set forth above.
------------------------------
* (sm) "Trust Originated Preferred Securities" and "TOPrS" are service
marks of Xxxxxxx Xxxxx & Co. Inc.
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3. The compensation per Preferred Security to be paid by the Company to
the several Underwriters in respect of their commitments hereunder shall be
$.7875; provided, however, that the compensation per Preferred Security for
Sales of 10,000 or more Preferred Securities to a single purchaser shall be
$.50.
If the foregoing agreement is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
NORTHERN STATES POWER COMPANY
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Vice President and Chief
Financial Offier
NSP FINANCING I
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Regular Trustee
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxx Xxxxxx Xxxxxxxx Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxx Xxxxxxxx Incorporated
Xxxxx Xxxxxxx Inc.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx Xxxxx Xxxxxxxxxx
-----------------------------------
Authorized Signatory
For themselves and as the Representatives of the several Underwriters
named in the Purchase Agreement.
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